ALJDEC decisions subject to certification as final

07F-2707-ROC · Registrar of Contractors · 2008-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2008 APPEARANCES: Complainant appeared through its president and qualifying party, Mike McQuillan (“Mike”) and Respondent appeared through its managing member and qualifying party, Brett Petillo (“Brett”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Respondent retained Complainant to supply specified wood ceiling panels for a commercial project. Complainant alleges that it has not been paid in full for the materials provided and the issues surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant supplied the wood panels and Respondent provided the installation of said panels. b. According to Mike, the original contract price was approximately $74,000.00 and, with changes and/or additions, the contract came to something over $100,000.00. c. Mike testified that at the end of the project there was a final walk through, resulting in a punch list. Mike claims that Complainant corrected all of the punch list items. After completing the punch list, Complainant sent a final invoice to Respondent for the sum of $9,010.00 and this is the invoice that Respondent has failed to pay. d. Respondent’s failure to pay the above-described final invoice, resulted in the filing of the instant Complaint with the Registrar of Contractors. e. Respondent called Arlo Anderson (“Arlo”) a witness. Arlo is Respondent’s superintendant. According to Arlo, Complainant was late on some of the deliveries of the panels and this late delivery cost Respondent money, because it had to stop work on the project. f. Arlo further testified that some of the panels arrived uncut and damaged. When Complainant was advised of this problem, he told Respondent to put them up as-is and Complainant would fix them later. g. According to Arlo, Complainant never completed the repairs to the panels, sufficient to satisfy the general contractor for the project. h. Mario Dominguez (“Mario”) appeared at the hearing and was called to testify by Respondent. Mario is employed by Respondent and he testified that many of the panels, delivered by Complainant, were not ready for installation, due to not being cut to the right size and many showing damage. According to Mario, Respondent had to cut back a number of the panels because they were delivered too long for the application. i. Dan Cleaves (“Dan”) appeared and testified for Respondent. Dan was the superintendant for the general contractor on the project in question. Dan testified that Complainant failed to complete all of the punch list items and Respondent had to finish the punch list with its own manpower. j. Brett testified that when Complainant failed to complete the punch list items, he sent Complainant a notice that it had twenty-four (24) hours to return to the project and complete the necessary remedial work. When Complainant failed to respond to Respondent’s written notice, Respondent used its own personnel to complete the corrective work. k. Respondent claims entitlement to back-charges against Complainant for all of its man hours in dealing with the delays on the project and correcting the non conforming panels, damaged panels, and completing the punch-list work. According to Brett, the back-charges are in excess of the amount claimed due and owing by Complainant in the above-described final invoice.

3. The evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to Complainant from Respondent. 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 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 Respondent of the provisions of A.R.S. § 32-1154A (11) can be supported. Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by Respondent and thus, has not sustained the burden of proving that Respondent has committed the violations charged herein.

2. The 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 that this Citation (no. 07-2707), together with the Complaint upon which it is based, shall be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, February 4, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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