ALJDEC decisions subject to certification as final

08F-H0122-ROC · Registrar of Contractors · 2008-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2008, at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Fred Warring. 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 B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant performed construction work on a residential remodeling project for a corporate entity identified as West USA Warring & Associates Property Management (“USA”). 3. There was no dispute that the parties entered into an agreement wherein the Complainant would perform specified construction work on a residence that USA was attempting to sell for the owner of the residence. 4. There was no dispute that USA did not own the residence at issue. 5. Credible testimony and evidence, presented at hearing, established the Construction Agreement provided that the Complainant would receive the sum of $5,000.00 as a down payment and another $5,000.00 when the construction project was properly completed. 6. There was no dispute that the Complainant received the initial payment of $5,000.00 and began the construction project. 7. When the Complainant requested the payment of the second payment of $5,000.00 for the alleged completion of the construction project USA declined to pay the remaining $5,000.00 on the alleged basis that the Complainant’s construction work was unsatisfactory and incomplete. 8. When USA declined to pay the second payment of $5,000.00 for the completion of the construction project, the Complainant filed a formal Complaint against the licensed Respondent. 9. There was no dispute that USA does not have a Contractor’s License. 10. Credible testimony and evidence, presented at hearing, established a Contractor’s License was required for the type of work that USA was performing on the residence at issue. 11. There was no dispute that USA and the Respondent share the same individuals as corporate officers and members. 12. Credible testimony and evidence, presented at hearing, established the Respondent is a proper party in this matter. 13. The Respondent asserted and produced testimony and evidence that portions of the Complainant’s completed construction work failed to comply with applicable industry and workmanship standards and the Complainant failed to complete the construction project in accordance with the terms and conditions of the parties’ Construction Agreement. 14. 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 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) (Failure to pay monies when due) 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 evidence of record was inadequate to support any finding of a violation of A.R.S. § 32-1154A (7) (Wrongful or fraudulent act).

RECOMMENDED ORDER In view of the foregoing, it is recommended 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, September 2, 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 Fax: (520) 628-5575 www.azoah.com