ALJDEC

00F-T0527-ROC · Registrar of Contractors · 2000-05-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2000, at 8:30 a.m. APPEARANCES: Hawaiian Pools Inc. (Corp.) appeared through its attorney, Roger Decker. Giles Construction Inc.(Corp.), appeared through its attorney, Dean Sipe. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ These matters came on for consolidated hearing on May 15, 2000. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. Complainant/Respondent Hawaiian Pools Inc., is the holder of a Class A- License issued by the Registrar of Contractors. 2. Respondent/Complainant Giles Construction Inc., is the holder of a Class B-01 License issued by the Registrar of Contractors.

3. This is a commercial matter where Giles Construction Inc., was the general contractor for the construction of a Pima County Parks & Recreation municipal swimming pool project. Hawaiian Pools Inc., was the subcontractor responsible for the construction of the swimming pool, deck and slide portions of the construction project. 4. During the course of construction the parties experienced repeated problems at the construction project and the personal relationship between the parties’ employees working at the job-site deteriorated rapidly. Both parties displayed a near inability to effectively communicate with each other at the job-site. 5. At the conclusion of the construction project the parties remained in dispute and Hawaiian Pools Inc., filed a formal complaint against Giles Construction Inc., alleging that Giles Construction had failed to pay the sum of $146,982.19 for construction work performed by Hawaiian pools. Giles Construction Inc., answered that no funds were due Hawaiian Pools for its construction work on the commercial project and that, after assessment of all back-charges on the project, that Hawaiian Pools owed Giles Construction Inc., the sum of $4,632.00. Giles Construction Inc., then filed a separate complaint against Hawaiian Pools Inc., alleging that Hawaiian Pools Inc., failed to perform its subcontract per plans and specifications, causing Giles Construction Inc., to incur additional costs by having to retain an alternative swimming pool subcontractor for the completion of the construction project and for the correction of allegedly deficient work performed by Hawaiian Pools Inc.

6. Giles Construction Inc., asserted that the alleged failure of Hawaiian Pools Inc., resulted in additional costs and expenses to Giles Construction Inc., and constitutes a wrongful act, a failure to comply, in a material respect, with the provisions of A.R.S. Section 32- 1154(A)(9)and (13.

7. Hawaiian Pools Inc., denied all of the charges set forth in the complaint filed by Giles Construction Inc..

8. At the hearing Hawaiian Pools Inc., contested $118,553.20 of the total sum of $139,884.00 assessed as back-charges by Giles Construction Inc., against Hawaiian Pools Inc..

9. There was sufficient credible evidence presented at the hearing to establish that the dispute between the parties regarding the validity of the assessed back-charges is a good faith dispute which will necessitate a monetary adjudication between the parties. Good faith monetary disputes which require a monetary adjudication should be resolved, if at all, in a civil court of competent jurisdiction.

10. Credible evidence, presented at hearing, established that all of the items that were alleged to constitute poor workmanship, or to constitute unauthorized deviations from plans and specifications, had been corrected prior to the filing of the complaint by Giles Construction Inc.

11. Credible evidence of record established that the items set forth in the complaint against Hawaiian Pools Inc., (Alleged as offsets against the claim asserted by Hawaiian Pools Inc.), are part of a good faith dispute between the parties that will necessarily involve a monetary adjudication and should be resolved, if at all, by a civil court of competent jurisdiction. 12. Notice is taken of the prior License records of Hawaiian Pools Inc., and Giles Construction Inc., with the Registrar of Contractors. CONCLUSIONS OF LAW 1. A Complainant has the burden of demonstrating by a preponderance of the evidence that the charged Respondent has violated the charged sections of the State’s Contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. The Registrar of Contractors is not empowered to adjudicate and award money damages. A monetary adjudication should be resolved by a civil court of competent jurisdiction. 3. The credible evidence of record is insufficient to establish any of the charged violations of A.R.S. Section 32-1154(A) against Hawaiian Pools Inc.. 4. The credible evidence of record is insufficient to establish any of the charged violation of A.R.S. Section 32-1154(A) against Giles Construction Inc.. RECOMMENDED ORDERS 1. In view of the foregoing, it is recommended that Case No. T00-0213, together with the complaint upon which it is based, be dismissed. 2. In view of the foregoing, it is recommended that Case No. T00-0527, together with the complaint upon which it is based, be dismissed.

Done this day, May 30, 2000

______________________________________ M. Douglas Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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