ALJDEC decisions subject to certification as final

06F-P0264-ROC · Registrar of Contractors · 2007-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15th, 2007, 9:00 a.m. APPEARANCES: Complainant, Mr. Michael Lewis, appeared and represented himself. Respondent, Lauderbach Construction, Inc., was represented by Mr. Kent Lauderbach, Sr., President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record, and based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent herein, Lauderbach Construction, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class KB-01 License number 136215. 2. Complainant herein, Mr. Michael Lewis, contracted with Respondent in writing on September 19th, 2005, for Respondent to pour a concrete slab and upon it construct a custom built, 40’x60’ metal building in Show Low, Arizona. The building was to be manufactured by a third-party business known as Mueller, Inc. 3. The total price of the contract was $59,000.00, of which $6,300.00 was to go to Mueller, Inc. Complainant paid Respondent $20,000.00 as a down payment. Respondent gave of that $6,300.00 to Mueller, and Mueller began to work on the building. 4. A delivery date from Mueller was anticipated around the first of December, 2005. During the interim Complainant was supposed to obtain a building permit as agreed by the parties. Complainant testified at the hearing that it had not been his responsibility to obtain the permit; however, a greater weight of the total evidence proves otherwise. Complainant did in fact obtain the conditional use permit from the local authorities, which, although not the same document, is circumstantial evidence that Complainant was assuming permitting responsibility. Complainant also testified that he himself did try three weeks to obtain the permit. The record also contains a copy of the permit application signed by Complainant. 5. Complainant and his wife testified at the hearing to a conversation between Complainant and Mr. Kent Lauderbach, Sr., President of Respondent, wherein Mr. Lauderbach indicated that if Complainant assisted in the work on the building he would charge Complainant more money. Complainant offers this as evidence that he was warned away from trying to obtain the permit, but as Respondent credibly testified, and as is more credible from the record as a whole, Respondent meant this to include only the physical part of the actual labor. 6. Complainant also testified that the local building authorities informed him that since this a commercial project he was not allowed to involve himself in the permitting process. Taking the record as a whole this would seem to be consistent with the Complainant’s great difficulty he was experiencing in succeeding with the permit process, and the local authorities wished him to bring the contractor into the process simply to facilitate the effort. 7. Eventually, Complainant became so frustrated with the permitting process that he told Respondent he just wanted to cancel the deal. Respondent was agreeable to working with Complainant to do that, and did so. 8. Respondent informed Complainant that since the building had been completely erected by Mueller, Respondent could not refund to Complainant Mueller’s cost of $6,300.00. Respondent did succeed in finding another buyer for the building, and this enabled Respondent to refund Complainant the balance of the $20,000.00 down payment. Complainant now wants the Registrar to order Respondent to refund to him the other $6,300.00 paid to Mueller for construction of the building Complainant ordered.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.1, 7, and 11. 3. There is no evidence that Respondent violated A.R.S. 32-1154.A.1. Respondent did not abandon the project; rather, Complainant canceled it. 4. There is no evidence that Respondent violated A.R.S. 32-1154.A.11. Complainant did not render any services or materials to Respondent. Complainant ordered a building to be manufactured by a third-party and had to pay for it. 5. There is no evidence of any wrongful or fraudulent act on the part of Respondent in this case in violation of A.R.S. 32-1154.A.7.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint No. P06-0264, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 20th, 2007.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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