ALJDEC decisions subject to certification as final

08F-P0126-ROC · Registrar of Contractors · 2009-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 2009 at 1:30 p.m. APPEARANCES: The Complainants appeared through Cyndy Brooks. The Respondent appeared through its authorized representative, Katrinna Pint. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class B- license issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a written construction agreement wherein the Respondent contracted to construct an addition to the Complainants’ existing residence. 3. Credible testimony and evidence established that the individuals who presented the construction project to the Complainants were employees of the Respondent and that the Respondent is fully bound by the terms and conditions of its construction agreement with the Complainants. 4. There was no dispute that the Complainants paid the Respondent $12,600.00 as a deposit for the construction project. 5. There was no dispute that the Respondent failed to obtain required building permits from the local building authority before starting construction on the room addition. 6. There was no dispute that the local building authority issued a stop work order for the construction project. 7. Credible testimony and evidence established that the Complainants then terminated the Respondent from the construction site, demanded the return of their $12,600.00 from the Respondent and retained an alternative contractor to complete the construction project. 8. Credible testimony and evidence established that the alternative contractor has completed the construction of the room addition and that no further work on the room addition is required. 9. When the Respondent refused to return all of the deposit money, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Credible testimony and evidence established that the Respondent had performed construction work at the construction site and may be entitled to some portion of the deposit money paid to it. 11. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing from the $12,600.00 to the Complainants from the Respondent. 12. The 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 the Complainants. 13. The Respondent’s actions, in starting a construction project without first obtaining required construction permits as required by the local building authority and in attempting to evade responsibility for the actions of the its employees who presented the contract to the Complainants, are found to constitute a wrongful act. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154 (A) (7) (Wrongful Act) and (Departure form or disregard of plans or specifications or any building codes of the state or any political subdivision). 2. 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. 3. The Complainants failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s Class B- License shall be suspended for a period of twenty days. 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 5, 2009.

______________________________________ M. Douglas Administrative Law Judge Original transmitted by mail this ____ Day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com