ALJDEC decisions subject to certification as final

2010A-23326848-ROC · Registrar of Contractors · 2010-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2010 APPEARANCES: Caparella Flooring was represented by its authorized representative, Stephen Caparella. Excel Hotel Services, Inc. was represented by its attorney, Bennett R. Shelsky, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Caparella Flooring (“Complainant”) is the holder of License No. 220940 issued by the Registrar of Contractors (“Registrar”). 2. Excel Hotel Services, Inc. (“Respondent”) is the holder of License No. 254600, a Class B-1 contracting license issued by the Registrar. 3. In July 2009, Complainant and Respondent entered into an agreement for Complainant to perform ceramic tile and carpet installation for Respondent, the general contractor for the Hyatt Regency hotel project in Phoenix, Arizona. 4. Ceramic tiles and carpeting for the remodeling project were supplied by the hotel owner. 5. On January 5, 2010, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent for Complainant’s work on the subject project. The Registrar designated Complainant’s Complaint as Case No. 2010-23326848. 6. The Registrar issued a Citation and Complaint in Case No. 2010- 23326848 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (11). 7. The Registrar forwarded Case No. 2010-23326848 to the Office of Administrative Hearings, an independent agency, for formal hearing. 8. After a financial dispute arose between the parties, Complainant hired Maxwell, Turner & Associates, Inc. (“MTA”) to initiate a collection action against Respondent. 9. MTA is determined to have acted as Complainant’s agent for the collection in the financial dispute. Complainant advised Respondent that MTA was its agent for the collection action. 10. MTA and Respondent negotiated a settlement price less than the amount of payment claimed due and owing by Complainant. 11. Respondent submitted the negotiated settlement price by check payable to MTA. 12. Complainant issued a lien release for the work it performed on the subject property after Respondent paid MTA the settlement amount of money. 13. MTA failed to pay Complainant any portion of the negotiated settlement price paid by Respondent. 14. Complainant, through its agent MTA, and Respondent reached an accord and satisfaction for the parties’ financial dispute. 15. Having complied with the parties’ accord and satisfaction, Respondent is determined not to owe Complainant any additional money as claimed by Complainant. 16. Respondent is not liable to repay the amount of money paid to MTA on Complainant’s behalf.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The doctrine of accord and satisfaction is “[a]n agreement to substitute for an existing debt some alternative form of discharging that debt, coupled with the actual discharge of the debt by the substituted performance.” Black’s Law Dictionary, Eighth Edition. Due to the parties having reached an accord and satisfaction of their financial dispute, Respondent’s debt to Complainant on the subject project has been discharged. 4. Complainant failed to sustain its burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-23326848 shall be dismissed on the effective date of the Order entered in this matter. In the event of certification of the 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 that certification.

Done this day, July 19, 2010.

/s/ Brian Brendan Tully 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