ALJDEC decisions subject to certification as final

2010A-25609360-ROC · Registrar of Contractors · 2011-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Sal Tortora. The Respondent appeared through its authorized representative, Steve Davis. 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-1 (No. 069859) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that on August 21, 2009, the Respondent received a quote from the Complainant for the provision, erection and dismantling of scaffold platforms at the Palo Verde nuclear facility for the sum of $4,800.00 in labor and $39.00 per day plus tax for the rental of the scaffolds with a seven day minimum rental. 3. There was no dispute that the Complainant provided the agreed upon scaffolding work for the construction project and that the Respondent utilized the scaffolding provided by the Complainant. 4. On January 28, 2010, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent had failed to pay the Complainant the sum of $1,915.88 for the agreed upon scaffolding work. 5. The Respondent asserted that it had imposed back charges against the Complainant based upon the assertion that the Complainant’s employees were required to undergo required safety training before they were allowed to work at the nuclear facility and that the administration of the nuclear facility required the Respondent to provide constant supervision of the Complainant’s employees while the Complainant’s employees were working at the nuclear facility. 6. Credible testimony and evidence established that the Respondent accepted the quote for the scaffolding work from the Complainant and that the Complainant arrived at the nuclear facility to begin work on the construction project on November 16, 2009. 7. Credible testimony and evidence established that the Complainant had previously stated that the Complainant’s employees had undergone required safety training at the nuclear facility. 8. Credible testimony and evidence established that the nuclear facility was unable to locate any record that the Complainant’s employees had undergone the mandatory training and that the nuclear facility required the Complainant’s employees to undergo a full day of safety training before work on the scaffolding could begin. 9. Credible testimony and evidence established that after the completion of the mandatory safety training, the nuclear power facility required the Respondent to assign an employee to provide constant supervision of the Respondent’s employees performing construction work at the nuclear facility. 10. The Respondent asserts that the cost of assigning an employee to constantly monitor the Complainant’s employees exceeds the amount claimed as due and owing by the Complainant. 11. 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. 12. 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 Respondent of the provisions of A.R.S. § 32-1154A (11) (Failure to pay monies 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 matter 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, March 25, 2011.

/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