ALJDEC decisions subject to certification as final

07F-T1192-ROC · Registrar of Contractors · 2008-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2008, at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, William Wissler. 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 K-34 License issued by the Registrar of Contractors. 2. The Complainant is a former employee of the Respondent. 3. On or about March 22, 2007, the Complainant filed a formal Complaint, with the Registrar of Contractors. 4. The Complaint provides, in pertinent part, as follows: “I still have a balance owed of about $1,300.00. Any time employees were paid, cash only is used.” 5. On or about August 27, 2007, the Respondent filed an Answer which provides, in pertinent part, as follows: “Complaint is not owed any money by Respondent as Complaint was paid in full shortly after he was fired from the job…While Complainant was painting at the gas station he got over spray on about six (6) cars. Complainant told Respondent to deduct the sum of $800.00 out of his pay to cover cleaning the over spray on the cars. Complainant was then fired and two weeks later he was paid in full…Complainant actually owes Mule Kick Painting $494.00, mostly for the damage claimant did to other persons’ vehicles by over spraying.” 6. Credible testimony and evidence, presented at hearing, adequately 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; therefore, precludes a finding that a liquidated sum is owed to the Complainant. 7. The credible evidence of record is found to be insufficient, and fails, to support a finding of a wrongful or fraudulent act by the Respondent.

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. 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 1, 2008.

______________________________________ M. Douglas 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 ___________________________ -----------------------

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