ALJDEC decisions subject to certification as final

07F-S0238-ROC · Registrar of Contractors · 2008-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 10th, 2008; 9:00 a.m. APPEARANCES: Complainant, Libra Enterprises, LLC, was represented by Mr. Bill Struckman, Managing Member. Respondent, Ferrin Johnson Construction, LLC, was represented by Mr. Alan E. Gooding, Attorney-at-Law.

ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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, Ferrin Johnson Construction, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class KB-02 License number 171288. 2. Complainant, Libra Enterprises, LLC, is an Arizona business which develops and then sells real estate for a profit. This case involves a residence in Safford, Arizona, owned by Complainant which it intended to sell. 3. Complainant contracted Respondent on or about June 1st, 2006, to build the spec home, and a building permit was obtained by the local authorities around that same time. 4. Approximately one year later Complainant filed the instant Complaint against the Respondent in the Registrar of Contractors’ office, alleging several workmanship defects, lack of on-site job supervision during construction, and failure to complete the project in a timely manner. The Complainant also alleges that Respondent took without permission the plans for the home to use them for construction of his own home. 5. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves. Inspector Nieves conducted a job-site inspection and as a result issued a written Corrective Work Order directing Respondent to correct three or four (depending if concrete cracks are counted once or twice) workmanship items. 6. The evidence proved, and this fact also appears in the CWO, that prior to the Inspector’s job-site inspection, Complainant had already hired other contractors to take over and complete the project. As a result of this activity the Inspector could not confirm some of the alleged defects because they had been covered by the work of other contractors. Other alleged areas of defect already had been corrected by the time of the job-site inspection.

7. At the administrative hearing it was proved that Complainant has now had the home fully completed by other contractors, and there are no workmanship defects remaining. Complainant now wishes the Registrar to order Respondent to pay Complainant an unspecified amount of money. 8. There is conflicting credible evidence as to what caused the delays on the project. Substantial credible evidence exists that once the site work began additional, more extensive site preparation became necessary which caused significant delay. Also there is conflicting credible testimony from the parties as to a possible two-week delay in the project due to order and delivery of the trusses. 9. Respondent’s owner Mr. Ted Ferrin testified that he refused to work anymore after Complainant stopped paying him. He claims that it is the Respondent, not the Complainant, who is owed money on this project. He further testified, contrary to Complainant Mr. Struckman, that he had permission to use the plans for another house. 10. It appears from the greater weight of evidence that the project was completed by Complainant and other contractors before Respondent had a reasonable opportunity to correct any defects after the Registrar of Contractors became involved in the matter, and now the parties have only a good faith monetary and/or contract dispute, which would be more properly resolved, if at all, in a civil court of competent jurisdiction. 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 herein is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. As the record proved that the parties fell into a dispute over this project which destroyed their working relationship, and that the project was completed by others, there remains only the parties’ good faith monetary and/or contract dispute. A good faith monetary and/or contract dispute, absent evidence of other wrongdoing, does not warrant disciplinary action upon a licensee. See: Bentivegna v.Powers Steel & Wire Products, Inc., 206 Ariz. 581, 81 P.3d 1040 (Ariz. App. Div. 1, 2003). RECOMMENDED ORDER The parties have a good faith monetary and/or contract dispute which should be more properly resolved, if at all, in a civil court of competent jurisdiction. Wherefore, it is hereby recommended that Citation and Complaint S07- 0238, 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, July 21st, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906 By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com