ALJDEC decisions subject to certification as final

07F-T0198-ROC · Registrar of Contractors · 2007-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26th, 2007; 9:00 a.m. APPEARANCES: Complainant, Greer Construction, LLC, was represented by Mr. Brian Greer, Managing Member. Respondent, Mr. Mark Virgil Wilford, doing business as Wilford Development, was represented by Mr. Greg Good, 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, Mr. Mark Virgil Wilford, is, and during all time material hereto was, a contractor licensed by the Arizona Registrar of Contractors, holding Class B License number 162565, and doing business as Wilford Development. 2. Complainant, Greer Construction, LLC, is a licensed contractor in Arizona. 3. These parties entered into a written contract agreement in November of 2005, whereby Complainant was to perform grading work on a project in Pima County, Arizona. 4. The parties fell into dispute over the meaning of the contract language which they were unable to resolve. Complainant contends that the contract means he is owed money under a time and materials agreement, whereas Respondent maintains that the contract means Complainant was to be paid a lump sum. 5. Complainant contends that there were changes necessitating further work for which he deserves to be compensated. Respondent maintains that the Complainant simply underbid the project and now seeks to unilaterally change it to receive more money. 6. After approximately two hours of testimony, and admission of dozens of exhibits into the record, there was no evidence of any dispute existing as between these parties other than their good faith monetary and contract dispute. At which point the Administrative Law Judge inquired of the parties if there were more to the dispute beyond that, and the parties both stipulated that the Complaint was to do with nothing besides their disagreements over the meaning of the contract, and they were seeking an order from the Registrar resolving their contract dispute and the issue of which party, if any, owes the other party money. 7. The evidence also proved that these parties are currently involved in civil litigation in Pima County, which they stipulated involves the same case and controversy in this Complaint. The parties were advised of the Registrar’s longstanding policy of not resolving contract and money disputes where there is no allegation of any wrongdoing on the contractor’s part beyond that, and were asked if they would prefer to ask the Registrar to dismiss this case without prejudice so that they could resolve their monetary and contract dispute in the Superior Court where it is now being litigated between them. 8. The parties stipulated to a recommended Decision and Order issuing recommending that the case be dismissed so that they could proceed with their case in civil court. 9. The record further indicated that Respondent was conducting business in the name that appears on its Arizona contractor’s license and none other. 10. It appears from the record and the parties’ stipulations that the parties have a good faith monetary and 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 is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7, 11 and 15. 3. There is no evidence to conclude that Respondent violated A.R.S 32- 1154.A.15 by contracting in a name other than the name appearing on its license. 4. A good faith monetary and/or contract dispute, absent evidence of other wrongdoing, does not warrant disciplinary action upon a license. 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 contract dispute which should be more properly resolved, if at all, in a civil court of competent jurisdiction. In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T07-0189 be dismissed on the effective date of this Order (40 days after the date of service shown 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, them the effective date of the Order shall be 40 days after the date of that certification.

Done this day, January 26th, 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