ALJDEC decisions subject to certification as final

04F-L0025-ROC · Registrar of Contractors · 2004-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2004 at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Steve Anderson. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

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 a new residence for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to complete its work in a timely manner despite repeated requests that it do so. 4. After taking possession of the residence, the Complainant filed a formal complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and the parties prepared a type of punch list. No written corrective work order was issued. 6. The Respondent issued notice that it had complied with the punch list. 7. The assigned agency inspector then moved to close the complaint. 8. The Complainant then requested a formal hearing. 9. The Respondent then was cited for possible violations of A.R.S. §32- 1154A 1, 2 and 7. 10. Credible testimony and evidence, produced at hearing, established that the residence is now complete and has passed all necessary inspections by the local building authority. 11. Credible testimony and evidence, presented at hearing, established that the Respondent took far longer to complete the residence than the time period set forth in the parties’ written agreement. However, credible testimony and evidence, presented at hearing, established that the Complainant failed to provide evidence of an approved loan within the time period set forth in the same written agreement. 12. Credible testimony and evidence, presented at hearing, established that the Respondent repeatedly failed to return telephone calls to the Complainant and failed to keep the Complainant informed of progress on the residence. The Respondent is admonished that had it maintained normal communications with the Complainant that the Complainant may not have filed a formal complaint in this matter. 13. Complainant produced testimony and evidence regarding his monetary damages including the loss of a locked in interest rate, loss of wages for the Complainant and Complainant’s wife, and the stress that his family has been placed under during the construction of his new residence. 14. The Respondent disputed the Complainant’s claim for damages based upon the Complainant’s failure to provide evidence of an approved loan within the time period set forth in the parties’ written agreement. 15. Credible testimony and evidence, presented at hearing, adequately demonstrated a dispute between the parties regarding what, if any, damages is due to the Complainant from the Respondent. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that the Respondent violated the charged provisions of A.R.S. §32-1154A.

CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate disputed damages in the face of a good faith dispute on such damages. Until and unless any claimed damage is reduced to judgment by a civil court of competent jurisdiction, no violation by Respondent of the provisions of A.R.S. § 32-1154A can be supported. 2. There was insufficient credible evidence presented to support a finding that the Respondent has violated the charged provisions of A.R.S. §32- 1154A (1), (2) and (7). 3. Complainant failed to sustain his burden of proving that Respondent has committed the violations charged herein. RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be dismissed. Done this day, February 17, 2004.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of February, 2004, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ____________________________

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