ALJDEC decisions subject to certification as final

07F-Y0235-ROC · Registrar of Contractors · 2008-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10th, 2008; 9:00 a.m. APPEARANCES: Complainant, B I M Drywall, LLC, was represented by Mr. Bernardo Marquez, Qualifying Party. Respondent, Miranda Construction, LLC, was represented by Mr. Jose Miranda, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, and via webcam from the Registrar of Contractors’ Yuma office. 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. Respondent, Miranda Construction, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class L-07 (Commercial Carpentry) License number 182478, and Class C-07 (Residential Carpentry) License number 177104. 2. Complainant, B I M Drywall, LLC, was contracted by Respondent on or about October, 2006, to hang drywall in a commercial construction project in Yuma, Arizona. 3. The parties are essentially the two Qualifying Parties on the license; Mr. Bernardo Marquez of the Complainant, and Mr. Jose Miranda of the Respondent. Mrs. Marquez and Miranda did not put their contract in writing, and now they have materially different recollections as to what was agreed to in the contract. 4. As a result, while Respondent acknowledges that he does owe Complainant some amount of money, he refuses to pay the Complainant the amount Complainant contends Respondent owes. Part of Respondent’s defense is that he or his crew hung a significant portion of the drywall, and therefore Respondent owes the Complainant less money than Complainant says is owed. 5. Respondent’s licenses are classified as carpentry licenses, not drywall hanging, which is beyond the scope of a carpentry license.

6. As to the argument over money owed, it appears that 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. 7. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors.

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 17. 3. 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.23 1040 (Ariz. App. Div. 1, 2003). 4. Aside from the monetary and/or contract dispute, the evidence, including Respondent’s own sworn admission, proves that Respondent in this project knowingly contracted beyond the scope of its carpentry licenses, and performed, as a contractor, drywall work. Drywall contracting requires a Class L-10 Drywall License. Therefore, Respondent did violate A.R.S 32-1154.A.17. 5. Other than the violation of A.R.S 32-1154.A.17, there is no evidence of any other wrongful or fraudulent act constituting an independent 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 Respondent’s Class L-07 License number 182478 be suspended for a period of three days commencing 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 14th, 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 ___________________________

-----------------------

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