ALJDEC

98F-L0215-ROC · Registrar of Contractors · 1999-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 1999 (Lake Havasu City, Arizona)

APPEARANCES: Complainant was represented by its President and Qualifying Party, Gary Van Orden; Respondent was represented by its Qualifying Party, Gary Romero.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Azdek, Inc. brings this “no pay” action against Respondent Lake Havasu Pools and Spas claiming that Respondent has wrongfully withheld money owed to Complainant for work done as a subcontractor. Administrative notice is taken of the Final Order in Azdek, Inc. v. Lake Havasu Pools and Spas, No. 98f-L0115-ROC, a previous action by Complainant that raised the same issues. That Order dismissed part of Complainant’s claim without prejudice. Complainant has re-alleged the dismissed part of the claim in this matter. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Respondent builds pools. From 1994 through 1997, Complainant constructed, under verbal subcontracts, pool decks and patios for pools that Respondent was building. Complainant claims that Respondent owes the following amounts from those subcontracts: a. Invoice 2528 (Job 6083, Buckingham)--Complainant claims that Respondent owes $2804.95. Respondent claims that it has been paid. b. Invoice 2594 (Job 6156, Hagen)--Complainant claims that Respondent paid $4000.00 but still owes $3773.40. Respondent claims that the total contract price was $5045.00 and admits that he owes $1045.00, but no more. c. Invoice 2624 (Job 6189, Frederick)--Complainant claims that Respondent owes $2698.50. Respondent admitted at hearing that he owes that amount. d. Invoice 2646 (Job 6221, Burke)--Complainant claims that Respondent owes $320.00. Respondent admitted at hearing that he would pay that amount. e. Invoice 7041 (Job 7041)--Complainant claims that Respondent owes $40.00. Respondent admitted at hearing that he would pay that amount. f. Invoice 7068 (Job 7068)--Complainant claims that Respondent owes $36.00. Respondent admitted at hearing that he would pay that amount.

2. Respondent has agreed to pay the items described above in paragraphs 1c, 1d, 1e, and 1f, which amounts to $3094.50. 3. Regarding the Hagen job, paragraph 1b above, Respondent has agreed to pay $1045.00, but no more. The evidence does not support Complainant’s claim beyond the $1045.00 that Respondent admits owing. The evidence does not show that the extra work done by Complainant was contracted for by Respondent. (Exhibits A, C, and K.) 4. Regarding the Buckingham job, paragraph 1a above, Complainant has not proven his claim. 5. During the hearing, the parties disputed whether money paid by Respondent to Complainant was credited toward certain invoices. Respondent wanted a payment credited to one invoice while Complainant credited it to another. It is not necessary for this tribunal to resolve that dispute. Complainant claims that Respondent owes $9,672.85. Complainant has proven, however, only that Respondent owes $4,139.50. CONCLUSIONS OF LAW 1. Respondent has agreed to pay $4139.50 of the claimed amount. Some of that amount (for example, $1045.00) he admits that he has owed for some time. Thus, violation of A.R.S. § 32-1154(A)(11) is established. Beyond $4139.50, the evidence of record does not sufficiently sustain a conclusion of violation by Respondent of the provisions of A.R.S. § 32- 1154(A) as charged in the Citation and Complaint. 2. Regarding any amount beyond $4139.50, a good faith dispute between the parties exists regarding Respondent’s liability to Complainant for the work that Complainant performed. Thus, there has been an insufficient showing in this proceeding that Respondent owes Complainant a sum certain beyond $4139.50 that is past due or that Respondent acted fraudulently or wrongfully. Until Complainant’s claimed rights to payment are reduced to judgment by a civil court, no violations by Respondent of any of the charged subsections of A.R.S. § 32-1154(A) are established beyond $4139.50.

. . .

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B-05 license 061450 be suspended beginning the effective date of the Registrar’s Order in this matter until Respondent has paid Complainant $4139.50. IT IS FURTHER RECOMMENDED that if Respondent pays Complainant $4139.50 on or before the effective date of the Registrar’s Order, the license suspension not take place and Citation and Complaint L98-0215 be closed.

Done this 25th day of May 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of May 1999, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

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