ALJDEC decisions subject to certification as final

06F-T0244-ROC · Registrar of Contractors · 2006-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14th, 2006; 1:30 p.m. APPEARANCES: Complainant, Mr. Edward Lee Passow, doing business as Passow Plumbing Company, was represented by Mr. Patrick Lopez, Attorney-at- Law. Respondent Twin Peaks Construction, Inc., was represented by Ms. Mary Barnett, Vice President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, Twin Peaks Construction, Inc., of Nevada, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class A License number 179265. 2. Complainant, Mr. Edward Lee Passow, doing business as Passow Plumbing, is a licensed plumbing contractor in Arizona. 3. This Complainant concerns a dispute over money allegedly owed from Respondent to Complainant for plumbing and other work performed by Complainant for Respondent on several job sites at various locales in Arizona. 4. Complainant alleges that he was hired by Respondent as the plumbing contractor for eight different construction projects during 2004, and 2005. Complainant concedes that there never was any written contract between him and the Respondent. Complainant alleges that there was a verbal agreement at the outset of the alleged contractual relationship whereby the parties agreed that Respondent would pay Complainant $800.00 per week for his work, plus pay for materials. 5. Complainant’s evidence failed to produce any sum certain claimed to be owed from Respondent. In fact, there were no time sheets proving how many employees worked how many hours on how many jobs. Mr. Passow himself, when testifying could only estimate how many days he worked on any given job, which amount would have bearing on how much money he would entitled to receive, if any. 6. The invoices produced by Complainant for the eight jobs were not created contemporaneously with the work allegedly performed. In fact, all invoices generated by Complainant were dated April 4th, 2005. They were not transmitted by Complainant to Respondent until the following September. They do not reflect an amount claimed based on $800.00 per week. Rather, as Ms. Passow, the company bookkeeper testified, after she was allegedly told by Respondent that the Respondent would not pay Complainant, Complainant disregarded the alleged original verbal agreement and simply submitted these invoices based on what they would have been owed had they actually had a contract of some kind. Nevertheless, Complainant’s position is that it is claiming not what appears on the invoice, but only the $800.00 per week, whatever such amount as that might be. 7. Ms. Passow, the bookkeeper, admitted that that there was an error in the Complaint field by Complainant relating to how much money Complainant claims is owed. 8. Respondent’s Project Manager, Mr. David Barnett, testified that there was never any subcontracting work performed by Complainant on these jobs, after the initial project at Bisbee, Arizona. However, Mr. Barnett then testified in contradiction of himself, that Respondent never enters into any subcontracting relationship without a written contract, and there was no written contract for any of these jobs, including the Bisbee job. Mr. Barnett testified that Mr. Passow was hired as an employee for $100.00 a week. 9. Mr. Barnett testified that Mr. Passow signed all the applicable documents Respondent requires of all employees as a matter of routine, but did not produce any of those documents at the hearing.

10. Respondent’s evidence included the testimony of the company accountant that Mr. Passow signed a federal tax form 1099, which, according to the accountant, would tend to prove that Ms. Passow was a subcontractor of Respondent. Mr. Passow invoiced Respondent for concrete work performed on a project, which would seem to be beyond the scope of a plumber’s license, and tend to prove that Complainant was an employee working under Respondent’s license. 11. It appears from the record as a whole that these parties have a good faith monetary and/or contract dispute which would be more properly resolved, if at all, in a civil court of competent jurisdiction.

CONCLUSIONS OF LAW 1. This administrative hearing was 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 and 11. 3. A good faith monetary and/or contract dispute, absent evidence of other wrongdoing, does not warrant disciplinary action upon a licensee. See: Bentivegna v. Powers Steel & Wire Products, Inc., 206 Ariz. 581, 81 P.3d 1040 (Ariz. App. Div. 1, 2003).

RECOMMENDED ORDER The parties have a good faith monetary and/or contract dispute which should be more properly resolved, if at all, in a civil court of competent jurisdiction. Wherefore, it is hereby recommended that Citation and Complaint No. T06-0244 be dismissed on the effective date of this Order (40 days after the date of service shown on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 15th, 2006.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488