ALJDEC decisions subject to certification as final

07F-M1956-ROC · Registrar of Contractors · 2008-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2008

APPEARANCES: Complainant appeared through its vice-president, Dennis Redmon (“Redmon”) and Respondent appeared through its president and qualifying party, Steve Meyer. 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 accomplish specified concrete work on a new home development. The work in question involved concrete foundation and driveway work on twenty lots. Complainant claims that it has not been paid in full for this work. Respondent contends that it has back-charges against Complainant and does not owe any further payments to Complainant. These issues are discussed in the findings below.

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

a. At the time Complainant filed the instant Complaint, it claimed an unpaid balance due of $9,315.46. Shortly after filing the Complaint, Respondent paid Complainant the sum of $5,000.00, thereby leaving a remaining disputed balance of $4,315.46. b. Redmon testified that the lots, for which Complainant has not been paid the above-described outstanding balance, are lots 15, 8, and 14. According to Redmon, Complainant completed the work on these lots and has not received any recent request for repair work on said lots. c. Dora Lorenzen (“Lorenzen”) also testified for Complainant. Lorenzen testified that Complainant did, in fact, perform some remedial work on lot no. 8 and this work was completed in January 2008. She also indicated that although Respondent contends that he paid in full for the work on lot no. 14, there is an outstanding balance on that lot of $2,449.00 for extra work that was performed there. d. Lorenzen also testified that Complainant has waived any claim to approximately $4,800.00 in extra charges. e. Meyer testified that he believes Complainant has bookkeeping errors. According to Respondent’s records, it has paid in full for the work performed on lots 14 and 15. However, he admits that Respondent has not paid Complainant the balance of $724.68 on Lot 8, due to poor workmanship on other properties. f. According to Meyer, Respondent was required to perform substantial concrete repair on lot no. 19, in order to correct the installation of an out of level arcadia door wall. Meyer contends that the out of level concrete caused the problem with the arcadia door installation. In this regard, Respondent claims a back-charge against Complainant in excess of $2,400.00. g. Meyer also contends that it will incur future costs to repair an excessively out of level foundation on lot 17.

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. The facts presented herein support a finding of a bookkeeping issue between the two contractors, regarding whether or not payment was made in full on lots 14 and 15.. The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to resolve such pure bookkeeping issues.

4. In addition to the bookkeeping type dispute on lots 14 and 15, Respondent’s claimed entitlement to back-charges against Complainant is found under all of the circumstances to have been asserted in good faith. Therefore, it is determined and held that the bookkeeping issues between the parties, along with Respondent’s claim for back-charges 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. M07-1956), 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, March 11, 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