ALJDEC decisions subject to certification as final

09F-A0274-ROC · Registrar of Contractors · 2010-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2009 and February 16, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Karen Wargo. The Respondent appeared through its attorney, Robert Kozak. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and 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. The Complainant performed concrete and masonry foundation work as a subcontractor for a custom residence and guest house being constructed by the Respondent in the Respondent’s capacity of a general contractor.

3. The Complainant presented extensive testimony and evidence in support of the Complainant’s assertion that the Respondent had failed to pay the Complainant the final $19,185.41 due to the Complainant for the Complainant’s construction work on the new residence and guest house. 4. The Complainant asserted that the $19,185.41 has now increased with penalties and interest to the sum of $25,858.97 now allegedly due and owing to the Complainant from the Respondent for the Complainant’s construction work on the custom residence and guest house. 5. The Respondent produced testimony and evidence in support of the Respondent’s assertion that the Complainant had overbilled the Respondent for the Complainant’s work on the residence and guest house in the total sum of $19,183.81 and that the Respondent had fully paid the Complainant for the construction work at issue. 6. The credible evidence 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. 7. 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 Complainant. 8. The credible evidence of record is insufficient and fails to support a finding of a wrongful or fraudulent act by the Respondent. 9. The credible evidence of record is insufficient and fails to support a finding of a violation of the charged provisions of A.R.S. §32-1154A(13: NAMELY, A.R.S. § 32-1123(B) AND A.R.S. §32-1129 et seq.

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) (Wrongful or fraudulent act).

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, February 18, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826