ALJDEC decisions subject to certification as final

07F-G0721-ROC · Registrar of Contractors · 2007-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2007

APPEARANCES: Complainant appeared through its president and qualifying party, Ben Lopez (“Lopez”) and Respondent was represented by its attorney, Sterling Threet. 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 verbal agreement, Respondent retained Complainant to install carpet on numerous jobs. Complainant alleges non-payment on a number of jobs and the issues surrounding said claim are discussed in the findings below.

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

a. Complainant is a carpet installer and Respondent is a floor covering supplier. Over the period of September 1, 2006 through October 5, 2006, Complainant installed carpet on eleven (11) jobs, wherein Complainant contends that Respondent failed to pay for the services rendered. b. According to Lopez, the total for the billings in question comes to $4,926.99, all of which was not paid by Respondent. Lopez testified that he does not recall receiving any complaints from Respondent regarding the work performed on the jobs in question. Thus, when payment was not paid, in what Lopez believed was a timely manner, he filed the instant Complaint with the Registrar of Contractors on or about October 20, 2006, alleging the non-payment by Respondent. c. Lopez testified that all materials, including carpet pad, were supplied by Respondent. Lopez further testified that he never heard anything from Respondent, regarding the need to return unused portions of the carpet pad supplied on the various jobs. d. Mitchell Louden (“Louden”) appeared and testified for Respondent. Louden is the qualifying party for Respondent. According to the testimony of Louden, he indicated to Lopez at the beginning of their working relationship that any unused carpet pad would have to be returned to Respondent. Nevertheless, he admits that this requirement was never placed into writing. e. According to Louden, at the beginning of the working relationship between the parties, the carpet pad was returned but then it stopped. f. In addition to Respondent’s failure to return the excess carpet pad, Louden also asserts that Respondent failed to perform warranty repair work on a number of the projects. g. Respondent entered its exhibit B into evidence. This is a letter, dated September 26, 2006, wherein Respondent advised Complainant that their working relationship was terminated, based on a failure to return the carpet pad and to make warranty corrections. Lopez contends that he never received this document. Louden claims the document was mailed and transmitted via fax to Complainant. h. Louden asserts a claim for back-charges against Respondent for expenses incurred to have repairs performed on Complainant’s work, which Complainant either refused or failed to perform. i. Subsequent to the filing of the instant Complaint, Respondent’s attorney sent Complainant a letter, indicating that after making deductions for the lost carpet pad and the costs to have warranty work performed by others, Respondent owed Complainant the sum of $2,646.49 and therefore, enclosed a check in said amount. Complainant cashed the check but still claims entitlement to the balance of the billings which form the subject matter of the instant Complaint.

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 license disciplinary hearing, is the inappropriate forum to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. Under the specific facts and circumstances of the instant matter it is determined that 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) and (11).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation (no.G07-0721), 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, June 15, 2007.

______________________________________ Mark A. Silver 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 ___________________________

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