ALJDEC

99F-2218-ROC · Registrar of Contractors · 1999-08-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on August 10, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Thomas Atkinson, Qualifying Party For Respondent: Charles DeNovo, President FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: 1. The Complainant filed a complaint, dated January 28, 1999, alleging that as of that date Respondent was indebted to Complainant in the amount of $755.00. 2. At the hearing convened in this matter, the sole evidence introduced by Complainant established that the amount owing was $455.00, and that while at some point prior to the date of the hearing the sum of $755.00 may have been billed, it has since been reduced by payments in the ordinary course of business. 3. Respondent has testified that there is the sum of $305.00 that is unpaid but that this amount was purposely withheld due to a dispute over the responsibility for an insurance deductible paid by Respondent due to a claim filed by a homeowner for whom Complainant had performed work. 4. It is found on the basis of the record and the administrative file, notice having been taken thereof, that on the date of the complaint a sum in excess of $750.00 was not due and owing by Respondent to Complainant.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A.R.S. §32-1154 A (11) states that a licensed contractor may be disciplined if there is found to a “[F]ailure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”

Based upon the foregoing statute, Complainant has not established that as of the date the complaint was filed a sum in excess of $750.00 was due for materials of services rendered to Respondent. Failing to establish the jurisdictional elements of this section of the Arizona Revised Statutes is fatal to Complainant’s complaint and requires an order that it be dismissed.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Citation and Complaint issued in this Case No. 99-2218 be dismissed. DONE AND ENTERED this day, August 10, 1999

______________________________________ Neal H. Jordan 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 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826