ALJDEC

00F-T0191-ROC · Registrar of Contractors · 2000-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2000, at 9:00 a.m.. APPEARANCES: The Complainant appeared through its attorney, Pat Durazzo and the Respondents appeared through their attorney, Jim Woodrow. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT

1. Respondent, Benge Custom Homes, Inc., is the holder of a Class B- License (No. 122662) issued by the Registrar of Contractors. The said Respondent’s Class B- License was canceled on January 11, 1999. Respondent, Palasades Builders Inc., is the holder of a Class B- License (No. 141867) issued on January 11, 1999. The two entities have the same corporate officers and the same qualifying party, Stephen Benge. 2. Pursuant to contract, Complainant performed specified concrete work on a residential project wherein Respondent, Benge Custom Homes Inc., was acting in the capacity of a general contractor. The Complainant completed all of the specified work, including authorized extras and/or change orders, and requested payment from Stephen Benge. 3. Credible evidence established that Stephen Benge operated both corporate entities in an intermingled manner to such an extent that both corporate entities appeared to be the same entity, owned and operated by the same individual. 4. There was no dispute that a check was issued to the Complainant by Stephen Benge under the name of Respondent, Palasades Builders, Inc.. 5. Credible evidence, produced at hearing, established that the parties entered into a settlement agreement wherein the Complainant agreed to drop its claim for extras and the Respondents agreed to pay the Sum of $2,673.00 to the Complainant by May 13, 1999. 6. Credible evidence established that the Respondents failed to comply with the terms and conditions of the settlement agreement. 7. The Respondents’ actions in failing to comply with the terms and conditions of the parties’ settlement agreement are found to constitute a wrongful act. 8. The failure of the Respondents to pay the aforementioned sum of $2,673.00 to Complainant is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein, the conduct of the Respondents is found to constitute a violation of the applicable charged provision of the State’s Contracting Laws. 9. Notice is taken of the prior license records of both of the named Respondents.

CONCLUSIONS OF LAW

1. Both of the names of Respondents violated the provisions of A.R.S. §32-1154A (11) and (7)(Wrongful Act).

RECOMMENDED ORDERS

1. In view of the foregoing, it is recommended commencing on the effective date of the Registrar of Contractors’ Order that the Class B- license of Respondent, Benge Custom Homes, be revoked unless the Registrar of Contractors receives written proof that the said Respondent has paid the sum of $2,673.00 to Complainant. It is further recommended that if Respondent pays or tenders the above described sum of money on or before the effective date of the Registrar’s Order then the aforementioned license revocation shall not take place and Citation No. T00-0191W shall be closed. 2. In view of the foregoing, it is recommended, commencing on the effective date of the Registrar of Contractor’s Order that the Class B- License of Respondent, Palasades Builders Inc., be suspended unless the Registrar of Contractors receives written proof that the said Respondent has paid the sum of $2,673.00 to the Complainant. It is further recommended that if the Respondent pays the above described sum of money on or before the effective date of the Registrar’s Order then the aforementioned license suspension shall not take place and Citation No. T00-0191 shall be closed. Done this day, February 1, 2000.

______________________________________ M. DOUGLAS Administrative Law Judge

Original transmitted by mail this ____ day of February, 2000, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488