ALJDEC decisions subject to certification as final

09F-T0623-ROC · Registrar of Contractors · 2009-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2009 at 10:30 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Edward L. Estrada. The Respondent appeared through its attorney, Alan E. Gooding. 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. Respondent Chris John Papoutisis dba Papoutisis General Contracting (Indiv.) is the holder of a Class KB-02 License No. 183274 License issued by the Registrar of Contractors. 2. Respondent Papoutisis General Contracting LLC (LLC) is the holder of a Class B- License No. 249316 issued by the Registrar of Contractors. 3. The Complainant asserted that the Respondents had refused and failed to pay the Complainant the final $6,488.90 owed for the Complainant’s work on two residences where the Respondents were functioning in the capacity of a general contractor. 4. Credible testimony and evidence established that the Complainant had provided the Respondents with full and final lien waivers for both of the residences and that the owner of the two residences had refused to authorize any further payment to the Complainant based upon the full and final waivers in the owners’ possession. 5. Credible testimony and evidence established that the basis for the Complainant’s request for additional money was for alleged extra construction work performed directly for the owner and the owner’s personal representatives not for the Respondents. 6. There was no credible evidence that the Respondents ordered or authorized any extra construction work from the Complainant. 7. 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 Respondents. The Respondents’ 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. There was no credible evidence of a wrongful or fraudulent act by the Respondents.

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. As such, the Registrar will not address the parties’ monetary dispute in this forum, and no discipline will be imposed upon the Respondents’ Licenses. 2. The Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondents and thus, has not sustained the burden of proving that Respondents have committed a violation of A.R.S. § 32-1154 (A) (11) (Failure to pay monies when due) as 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 these Citations, together with the Complaint upon which they are based, 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 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 ___________________________ -----------------------

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