ALJDEC decisions subject to certification as final

06F-T1262-ROC · Registrar of Contractors · 2007-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2007, at 1:30 p.m. APPEARANCES: The Complainant appeared through its attorney, Rod Freeman. The Respondent appeared through its attorney, Evan Thompson. 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 L-11 License issued by the Registrar of Contractors. 2. The Complainant furnished material and labor for three separate construction sites. The only site remaining at issue for the hearing was the labor and material that the Complainant furnished for the Sells Recreation construction site. 3. There was no dispute that the Respondent contracted with the Complainant to supply fire alarm system equipment and “head in” for the fire alarm system for the Sells Recreation construction site. 4. There was no dispute that the Respondent was a subcontractor for a third entity identified as Pace Pacific Corporation which was the general contractor for the Sells Recreation construction site. 5. There was no dispute that the Complainant furnished the agreed upon fire alarm system, terminated the fire alarm panel, proved shop drawings and sent the

Respondent an invoice for the sum of $23,187.00 for the material and labor. 6. There was no dispute that the Respondent had a dispute regarding payment with the general contractor (Pace Pacific Corporation) and the Respondent had “walked off” the job as a result of the financial dispute. 7. The Complainant asserts the Respondent did not notify the Complainant that the Respondent was through with the job or that there was a problem with receiving payment from Pace Pacific Corporation. 8. The Respondent asserts that its qualifying party personally informed the Complainant that the Respondent was pulling off the Sells Recreation construction site because of non-payment by the general contractor (Pace Pacific Corporation) and that the Respondent should not be held responsible for the Complainant’s failure to insist on payment from the general contractor before the Complainant completed the fire alarm system for the Sells project. 9. There was no dispute that the Complainant told the representative for Pace Pacific Corporation that the Complainant could not perform the agreed upon work unless the general contractor agreed to pay the Complainant for its labor and materials and that the general contractor agreed to pay the Complainant for the construction project. 10. On June 2, 2006, the general contractor informed the Complainant that it would not be able to pay the Complainant for its labor and materials. 11. Credible testimony and evidence, presented at hearing, demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing 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 a liquidated sum is owed to the Complainant. CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. Until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction, no violation by the Respondent of the provisions of A.R.S. § 32-1154A (11) can be supported. 2. The Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent and thus, has not sustained the burden of proving that the Respondent has committed the violations charged herein. 3. The credible evidence of record was inadequate to support any finding of a violation of A.R.S. § 32-1154A (7).

RECOMMENDED ORDER In view of the foregoing, it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, February 14, 2007.

______________________________________ M. Douglas Administrative Law Judge Original transmitted by mail this ____ Day of ____________, 2007, to:

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

By ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488