ALJDEC decisions subject to certification as final

2010A-1029522-ROC · Registrar of Contractors · 2010-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, George Rossi. The Respondent appeared through its authorized representative, Andrew Palombi. 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 License B.110896-R issued by the Registrar of Contractors. 2. There was no dispute that the parties had entered into a construction agreement for the Complainant to install insulation in a new residence being constructed by the Respondent in the Respondent’s capacity as a general contractor. 3. Credible testimony and evidence established that on February 2, 2010 the Complainant performed preparation work on the new residence and was then ready to begin installation work the following week. 4. Credible testimony and evidence established that the Respondent canceled the construction agreement on February 5, 2010 on the basis that the Complainant’s contractor’s license had been suspended. 5. The Complainant then filed the complaint at issue seeking its costs for labor and materials in performing the preparation work on the new residence on February 2, 2010. 6. A review of the Complainant’s License record with the Registrar of Contractors establishes that the Complainant’s K-40 License was suspended by the Registrar of Contractors from February 1, 2010 until March 2, 2010. 7. 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. 8. 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.

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 charged provisions of A.R.S. § 32-1154A (11) (Failure to pay monies in excess of $750.00 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 and thus, has not sustained the burden of proving that the Respondent has committed the violations charged herein.

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, August 13, 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