ALJDEC

97F-A0279-ROC · Registrar of Contractors · 1997-10-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|MARK LESLEY, |§| | | |§|CASE NO.: a97-0279 | |Complainant, |§| | | |§|DOCKET NO.: 97F-A0279-ROC | |-v- |§| | | |§| | |License No.117746, Class B- of |§|RECOMMENDED | |I AMERC S CO. (OWN), |§|DECISION AND ORDER | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| |

HEARING: October 2, 1997, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its owner, Eric McNeill. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on October 2, 1997. The Complainant appeared on his own behalf and the Respondent appeared through its owner, Eric McNeill. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors.

2. This is a residential matter where the Respondent constructed an addition to the Complainant’s residence and agreed to install a new HVAC system for the entire residence.

3. The Complainant was dissatisfied with the Respondent’s workmanship and with its failure to complete its work despite repeated requests that it do so. The

Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence and to complete all work in accordance with the parties’ contract.

5. The Respondent complied with the majority of the items set forth in the corrective work order. Respondent’s efforts in attempting to make up for past construction errors are to be commended.

6. The only issue remaining in dispute between the parties, and the sole issue presented at hearing, concerned the Respondent’s admitted failure to install a new HVAC system for the residence despite being directed to do so in the written corrective work order.

7. There was no dispute that the parties had entered into a written agreement wherein the Complainant paid the Respondent with an automobile which the parties agreed, at the time, had a value of $4,000.00. In exchange the Respondent agreed to install a 2 ton HVAC system on the Complainant’s residence.

8. There was no dispute that the Complainant transferred the automobile in accordance with the parties’ agreement and that the Respondent took possession of the vehicle.

9. After taking possession of the vehicle, the Respondent came to believe that the vehicle was not worth the $4,000.00 value assigned to it in the parties’ agreement and attempted to void the agreement by returning the automobile.

10. The Complainant refused to accept the vehicle and demanded that the Respondent perform in accordance with the parties’ agreement.

11. Credible evidence, presented at hearing, established that the Complainant’s 1500 square foot residence actually requires the installation of a three ton HVAC system rather than the 2 ton system specified in the parties’ agreement.

12. Credible evidence established that the size of the HVAC system was determined by the Respondent. The evident fact that the Respondent made an error in sizing the HVAC system does not void the contract.

13. The fact that the Respondent now sharply disputes the value given the automobile previously stipulated to and set forth in the parties’ written agreement does not void the parties’ agreement.

14. The Respondent’s allegations that the Complainant misrepresented that condition and value of the automobile are found to necessarily require an adjudication of damages and to be more properly within the jurisdiction of a competent civil court.

15. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (23) and (3); namely, Rule R4-9- 108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent Class B- License shall be temporarily suspended until the Registrar of Contractors receives proof that the Respondent has properly installed an HVAC system for the Complainant’s residence as set forth in the parties written agreement. . . . . . . . . . . . .

It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation No.A97-0279 shall be closed.

Dated this 10th day of October, 1997.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of October, 1997 to:

Michael P. Goldwater, Director Attn: Jennifer Varela Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826