ALJDEC

99F-P0158-ROC · Registrar of Contractors · 1999-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 1999 (Show Low, Arizona)

APPEARANCES: ABS Plumbing was represented by its owner and Qualifying Party Dean Hudson; Bob’s Carpentry was represented by its owner and Qualifying Party Robert Rogers.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant ABS Plumbing brings this action to get payment from Respondent Bob’s Carpentry for labor and materials that Complainant provided as a subcontractor. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes following Findings of Fact, Conclusions of Law, and Recommended Order that the complaint be dismissed without prejudice because it is a bona fide legal dispute between the parties and not a violation of the Registrar of Contractors’ statutes. FINDINGS OF FACT 1. Respondent built a laundromat in St. John’s, Arizona. Both parties agree that they created a verbal agreement by which Respondent hired Complainant as a subcontractor to do the plumbing work for the laundromat. They do not agree, however, on the terms of the verbal agreement. They also dispute whether verbal changes were made during the work. 2. Complainant is seeking about $3582.99. Respondent has already paid Complainant $4800.00, even though Respondent’s position is that the agreed-upon contract price was $4500.00. 3. This case quite clearly involves a legal dispute between the parties about Complainant’s obligations under the verbal agreement. Complainant has not shown that Respondent took an unreasonable position in withholding payment. Nothing in Complainant’s documentary or testimonial evidence runs contrary to a conclusion that this is a genuine contractual dispute between the parties. This Administrative Law Judge cannot reasonably hold or infer that Respondent’s position in disputing liability under the verbal agreement is arbitrary, unreasonable, or asserted other than in good faith. 6. The Registrar of Contractors is not the appropriate tribunal in which to seek adjudication of a contractual dispute. This is more properly pursued in civil court. Even if Respondent is ultimately determined by a court to be responsible for payment under the parties’ verbal agreement, at this time the facts described above constitute a bona fide contractual dispute, and not a wrongful or fraudulent act by Respondent that would be proscribed by A.R.S. § 32-1154(A)(7). 7. The existence of a genuine contractual dispute renders Complainant unable to establish that a liquidated amount or sum certain is past due and owed by Respondent, which is an essential element to a violation of A.R.S. § 32-1154(A)(11). CONCLUSIONS OF LAW 1. 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. A good faith dispute exists between the parties regarding Respondent’s liability to Complainant under their verbal agreement for the work that Complainant performed. Thus, there has been an insufficient showing in this proceeding that Respondent owes Complainant a sum certain 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. 3. A dismissal of this complaint must be without prejudice. Complainant has the right to pursue available civil remedies for breach of contract. Any future failure by Respondent to promptly satisfy a court judgment in favor of Complainant would provide a basis for a new complaint against Respondent, which could lead to disciplinary action. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Bob’s Carpentry in Case No. P99-0158 be dismissed without prejudice.

Done this 17th day of September 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of September 1999, to:

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

By ___________________________

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