ALJDEC

01F-T0018-ROC · Registrar of Contractors · 2001-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, June 22nd, 2001; 9:00 a.m. APPEARANCES: The complainant, Coast to Coast Stucco Co., LLC, was represented by Ms. Carla L. Blackwell, Managing Member of the complainant LLC. The respondent was represented by Ms. Brenda J. Lee, attorney-at- law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson. Testimony was heard and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent in this case, Giles Construction, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-01 License number 080415. 2. The complainant, Coast to Coast Stucco Co., LLC., is a stucco contractor who had subcontracted with the respondent to perform stucco work on office buildings in Oro Valley, Pima County, Arizona, in early 2000. 3. The parties’ business relationship soured as a result of their sharp disputes over what money was owed the complainant by the respondent. 4. Eventually the parties ended up taking their controversy to two fora, the Pima County Superior Court and the Registrar of Contractors in this case. Presently the parties still have a case pending in the Pima Superior Court, the subject matter of which is the same controversy in this case. 5. The parties at the beginning of the hearing agreed to dismiss without prejudice all issues in this administrative hearing other than a limited number of issues surrounding alleged non-payment for change orders. Based on complainant’s counsel’s representations to respondent’s counsel a day or two prior to the hearing, such would be the extent of what the complainant would contest at the hearing. Thus the respondent’s counsel came to the hearing table prepared only to defend against those charges. 6. However, in presentation of complainant’s case, the complainant, who was not represented by counsel at the hearing, attempted to bring into evidence additional disputed charges, which the parties had previously agreed to leave in superior court, and which the respondent was unprepared to defend against based on the agreement between respective counsel, alluded to earlier. Complainant maintained the position that this evidence was necessary to show the back charges were not paid. 7. The citation and complaint in this case indicates the respondent is being cited for possible violations of A.R.S. §32-1154.A.7., and 11. The evidence showed that the major dispute between the parties is over the money that is owed or not owed from the respondent to the complainant. However, this is not merely a “no-pay” case. 8. It became obvious early on in the hearing that the parties could not even agree as to what part of the contracted work had allegedly not been paid. For example, the complainant wished to show evidence relative to a charge for time and material (outside the agreed scope of hearing), and tie that in to the charges for change orders in some way. The respondent maintains that charge was paid. There was a lump sum type of payment from the respondent to the complainant, but the parties could not even agree on which items that payment was for. Thus the parties wished to argue about what to argue about. 9. It appeared from the evidence that the parties’ disagreement is a good faith money dispute, more proper for resolution in the courts, which is exactly where the parties are now with this very controversy. 10. That being the case the administrative law judge so advised the parties on the record, and informed them that he would adjourn the hearing and issue a recommendation to the registrar to dismiss this case without prejudice in order that they may have their monetary dispute heard in the forum where it can properly be decided. CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction over the subject matter and parties. A.R.S. §32-1156, A.R.S. §41-1092. 2. The respondent is cited in the instant complaint with possible violations of A.R.S. §32-1154.A.7., and 11. The parties’ representations at hearing disclosed and the only evidence at hearing proved that the only controversy is over the monetary dispute for the subject contract. 3. It appears from the evidence that this dispute is currently reposed in the Pima County Superior Court, where it properly belongs, and is not proper subject matter for resolution by the registrar in an A.R.S. §32- 1154.A.11 hearing. RECOMMENDED ORDER In view of the foregoing it is hereby recommended that the registrar dismiss citation and complaint number T01-0018, without prejudice, in order that the parties may pursue their remedy in Pima County Superior Court. Done this day, July 3rd, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of July, 2001, 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