ALJDEC

99F-T0317-ROC · Registrar of Contractors · 1999-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|PLUMBRITE, INC., |(|Case No.: T99-0317 | | |(| | |Complainant, |(|Docket No.: 99F-T0317-ROC | | |(| | |vs. |(| | | |(| | |License No. 100445, Class B of |(|Recommended | |Mohammed Kassim Bairaqji d.b.a. |(|Decision and Order | |PIONEER HOMES (INDIV), |(| | | |(| | |Respondent. |(| | | |(| |

HEARING: May 3rd, 1999; 9:00 a.m. Appearances: The Complainant, Plumbrite, Inc., was represented by Mr. Thomas J. Nevers, Attorney-at-Law. The Respondent, Pioneer Homes, appeared through Mr. Mohammed Kassim Bairaqji, Owner and Qualifying Party. Administrative Law Judge: Grant Winston

This matter was brought on for administrative hearing on Monday, May 3rd, 1999, at 9:00 a.m. Testimony was heard and other evidence admitted to record, and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent herein, Mr. Mohammed Kassim Bairaqji, is, and at all times material hereto was, a contractor, licensed by and doing business in the State of Arizona, and holding Class B License 100445.

2. The Complainant, Plumbrite, Inc., through its President, Mr. Miguel Torres, entered into a verbal contract with the Respondent on or about May 26th, 1998, whereby the Complainant was to perform the plumbing and electrical construction on a project in Tucson, Arizona, known as the John Madril residence. According to the terms, the work was agreed to be performed and paid on a time and material basis, at the rate of $25.00 per hour, plus the cost of the materials.

3. Respondent gave Complainant an initial payment toward the contracted work in the amount of $1,000.00. Work was completed and the total amount became due in September of 1998.

4. Complainant sent Respondent a detailed and itemized invoice for the electrical and plumbing work on January 8th, 1999. The invoice separated the work into the categories of electrical and plumbing. The total bill for labor and materials for the plumbing work was $2,105.48, and for the electrical work, $1,644.03. The total amount of the invoice from Complainant to Respondent was $3,749.51. Crediting Respondent with the $1,000.00 already paid, the balance claimed by the Complainant was $2,749.51. A portion of that amount in addition to the initial payment was tendered by the Respondent, however Complainant lost the check. He requested Respondent to stop payment on that check and reissue payment for the balance. Respondent never paid any additional amount toward the balance after that time. No evidence was offered to support a finding that the lost check was ever cashed. The balance of $2,749.51 never has been paid by the Respondent, and is the amount Complainant claims to be due and owing as of the hearing date.

5. Complainant’s evidence included not only the January 8th, 1999 invoice, but also receipts and invoices for all the electrical and plumbing materials in support of his claim.

6. Respondent’s defense was slight and partial at best. He admitted to owing the Complainant a sum uncertain, and stated his desire to have agreement reached as to an amount. He stated that he had, previous to the hearing, attempted to communicate with the Complainant in order to do this. However, it is at this point in his evidence that Respondent’s case becomes vague.

7. Respondent offered the record no documentary evidence of his responsiveness to Complainant’s January 8th, 1999 invoice. Respondent testified that he did in fact have a telephone conversation with Complainant’s lawyer on January 20th, 1999, regarding the money owed Complainant. Complainant testified that he spoke in that conversation of his desire and willingness to reach agreement, but Respondent produced no evidence for the record to support any other amount he claims might be owed Complainant, nor any evidence of effort on his part to come to terms with the Complainant as to a just amount.

8. In short, Complainant’s evidence was detailed, documented and certain; Respondent’s evidence was vague, unsupported and ambiguous. The evidence of record leads to a finding that this is not a good faith money dispute, but a case of non-payment for services and materials, occasioned by Respondent’s foot-dragging and evasion.

9. The evidence demonstrates that the Respondent owes the Complainant $2,749.51.

10. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. . . . . . .

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.

2. The Respondent herein is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., and 11.

3. The clear weight of evidence in this case leads to the conclusion that Respondent did violate A.R.S. §32-1154.11., non-payment for services and materials in excess of $750.00.

Recommended Order

Wherefore, it is hereby recommended that the Respondent’s Class B License Number 100445, be suspended until such time as the Registrar receives satisfactory proof that the Complainant has received from the Respondent the sum of $2,749.51. It is further recommended that if, on or before the effective date of this order, the Registrar receives satisfactory proof that the Complainant has received from the Respondent the sum of $2,749.51., then no suspension of Respondent’s license occur, and this Citation and Complaint, together with the complaint on which it is based, be closed.

Dated this 4th day of May, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of May, 1999, to:

Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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