ALJDEC decisions subject to certification as final

07F-Y0236-ROC · Registrar of Contractors · 2008-05-13

HEARING: April 28, 2008 at 1:30 p.m. APPEARANCES: The Complainant appeared through its attorney, George R. Ferrin. The Respondent appeared through its authorized representative, Agustin Tumbaga. 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 KB-02 License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant performed framing on a custom residence being constructed by the Respondent in the Respondent’s capacity as a general contractor. 3. Credible testimony and evidence, presented at hearing, established the owner of the new residence was dissatisfied with the Complainant’s workmanship, particularly with the number of corrections required on the Complainant’s work and the construction delays, and additional costs, allegedly caused by the Complainant. 4. Credible testimony and evidence, presented at hearing, established the Complainant’s Contractor’s License was suspended for several months while the Complainant performed construction work on the residence at issue. 5. The credible of record 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 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 that this Citation, together with the Complaint upon which it is based shall 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, May 12, 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 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 www.azoah.com