ALJDEC decisions subject to certification as final

08F-T0235-ROC · Registrar of Contractors · 2008-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 2008, at 9:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Charles Schoen. The Respondent appeared through his attorney, David Sandoval. 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 commercial matter where the Complainant performed plumbing work on a hotel that was undergoing an extensive remodeling by the Respondent in his capacity of a general commercial contractor. 3. Credible testimony and evidence established the parties experienced repeated difficulties during the construction project and the Complainant was terminated from the construction project before it was finished. 4. When the Respondent refused to pay the Complainant’s final invoice, the Complainant filed the Complaint at issue. 5. The Complainant asserted the Respondent owed the Complainant the sum of $2,615.00 for the Complainant’s completed plumbing work on the hotel remodeling project. 6. The Respondent asserted the Complainant had failed to perform its work in a professional and workmanlike manner and the cost of correcting the Complainant’s unacceptable workmanship exceeded any amount claimed due by the Complainant for the remodeling project. 7. Credible testimony and evidence, presented at hearing, demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 8. 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. 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. 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 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, October 10, 2008.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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