ALJDEC decisions subject to certification as final

09F-S0181-ROC · Registrar of Contractors · 2009-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2009; 11:00 a.m. APPEARANCES: Complainant Mr. Matthew Warwick represented himself. Respondent Air Tech Air Conditioning and Heating, LLC was represented by Mr. Robert Smith, Member. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant Mr. Matthew Warwick has brought this Complaint to the Arizona Registrar of Contractors, apparently, seeking an Order from the Registrar directing the Respondent Air Tech Air Conditioning and Heating, LLC to cease attempts at collection of a disputed bill for work performed by Respondent on a home being built by Complainant to sell at a profit. 2. The house in question is located at 3760 Puerto Place, Sierra Vista, Arizona. 3. Complainant contacted Respondent and other HVAC contractors to bid on the HVAC work on a home Complainant was building in late December 2007. Complainant had dealt with Respondent’s Member Mr. Robert Smith before, and they had verbal discussions about this particular bid. Complainant told Mr. Smith that he would need to lower his bid for the HVAC work on this house to around $19,000.00. Mr. Smith said that would not be a problem. 4. On January 1, 2008, one of Respondent’s workers was seen by Complainant cutting holes in the roof of the house in furtherance of installing the HVAC fixtures. Complainant confronted him, but rather than tell him to stop working since no bid had been accepted for the work, Complainant showed him the proper locations for the holes to be cut and even loaned the worker the use of his own power tools to perform the work. 5. A few days later, the Complainant accepted another bid for the HVAC work to be performed on this house. Respondent sent Complainant a bill for the work his employee had done up to that time, $976.43. Complainant refused to pay the bill because there had been no actual contract signed or verbally agreed to by the parties. 6. Respondent then placed a preliminary 20-day lien notice on the house. However, the amount of the lien was more than twice the amount of the bill for the work performed by Respondent on the roof, $2,523.94. When asked why the discrepancy existed between the two amounts, Mr. Smith testified that he added on to the lien amount a sum allegedly due for work performed on another house at a different address. He said he added the second amount to the lien on this particular address because Mr. Warwick did not own the other house. 7. It appears that the parties have a good faith contract and/or money dispute that would be more properly resolved, if at all, in a civil court of competent jurisdiction. Still, even if Respondent is legally entitled to the full amount he is claiming for the work done on the house here in dispute, it cannot add amounts to a lien notice for this address that are allegedly due for work performed at a second address. 8. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing is held under authority of and pursuant to A.R.S. § 32-1156 and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.7. 3. The greater weight of evidence proved that Respondent knowingly and wrongfully included an amount on a 20-day Preliminary Lien notice for the amount in dispute for the work at 3760 Puerto Place, Sierra Vista, Arizona, contrary to the provisions of A.R.S. § 33-992.01 and in violation of A.R.S. § 32-1154.A.7. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Respondent’s Class K-39 License number 167369 be suspended until such time as the Registrar of Contractors receives written proof, satisfactory to the Registrar, that Respondent has corrected the amount allegedly owed for the work at 3760 Puerto Place on any lien notice in effect for that address. It is further recommended that in the event the Respondent properly corrects the lien notice on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), the above-provided license suspension shall not occur, and Citation and Complaint S09-0181 shall be closed. Done this day, October 26, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826