ALJDEC

99F-1180-ROC · Registrar of Contractors · 1999-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 1999 APPEARANCES: Steve Davis, General manager, on behalf of the Complainant Sherman Dennis, President, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. There is no dispute regarding the facts of this case. 2. In March of 1998, the parties entered a time and materials contract for the Complainant to finish some concrete work on the first phase of a condominium building project being constructed in Phoenix by the Respondent who was the owner builder. The total project anticipates a complex of 84 units on five acres of land. The first phase consists of 36 units which are almost finished. 3. The Complainant’s portion of the work was completed later in March of 1998, and on April 30, 1998, the Complainant sent the Respondent an invoice in the amount of $16,300.82. 4. The Respondent failed to pay on the invoice and the instant complaint was filed with the Registrar of Contractors (Registrar), on October 9, 1998. 5. In November, 1998, the Respondent paid $5,400.00 to the Complainant. No further payments have been made and the amount of $10,900.82 remains due and owing. 6. The Respondent has experienced financial difficulties on the project due to unforeseen excavation problems. The project ran behind schedule and over cost and the Respondent’s lender foreclosed for default on certain loans. The Respondent is in the process of renegotiating and restructuring the financing. 7. The Respondent believes he will finalize the restructuring of the debt and will be able to pay the Complainant in approximately 30 days. The Complainant has agreed to 45 days from the date of hearing as reasonable for the final payment owing in this case. Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32- 1154(A)(7) wrongful or fraudulent act with substantial injury and (A)(11), failure to pay for materials or services. 1. The parties agree that the amount alleged is due and owing. The Respondent has had financial difficulties but the evidence did not show a categorical inability to pay the amount owed over the entire 13 months since the Complainant submitted the invoice. 2. Based on the evidence and the agreement of the Complainant, the Respondent should be given an opportunity to pay the amount owing in the requested period of time. Recommended Order In view of the foregoing it is recommended commencing ten days from the effective date of the Order entered in this matter or such other date as the Registrar of Contractors deems appropriate under the facts of the case, that the Class B license of the Respondent shall be suspended until the Registrar receives written proof that the Respondent has paid or tendered payment in the amount of Ten Thousand-Nine Hundred and 82/100’s ($10,900.82) Dollars to the Complainant; It is further recommended that if the Respondent pays in accordance with the Order entered in this matter then the aforementioned suspension shall not take place and the Citation and Complaint upon which it is based shall be closed.

Done this day, June 15, 1999

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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