ALJDEC decisions subject to certification as final

08F-T1242-ROC · Registrar of Contractors · 2009-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2009; 1:30 p.m. APPEARANCES: Complainant, Penhall Company, was represented by Mr. Rick Lahr, General Manager. Respondent, Mariacher Corporation, doing business as Mariacher Contracting Company, was represented by Mr. Al Stangl, Qualifying Party 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, Mariacher Corporation, doing business as Mariacher Contracting Company, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class A License number 184049. 2. This Complaint concerns payment issues on a construction project in Marana, Arizona, where the Respondent had hired the Complainant to perform milling work at or around water mains at an interstate highway exit. The project was constructed in 2006, and Complainant claims that Respondent still owes Complainant $2,700.00 on the project. 3. Complainant filed the instant Complaint in the Registrar of Contractors on April 3, 2008, seeking an Order from the Registrar directing Respondent to pay the money. 4. Respondent filed a Written Answer to the Citation and Complaint denying that it owed the money and alleged defective workmanship on the part of the Complainant which contributed to the entire project now being involved in civil litigation. 5. Credible and substantial evidence did prove that the construction project is now the subject of a civil lawsuit in superior court involving at least Respondent and Metro Water District over claims and counterclaims for monies owed on the project. 6. Respondent’s credible documentary evidence supports Respondent’s claim that the Complainant’s work was incomplete and defective. The parties negotiated a deduction in the amount owed in consideration of the Complainant’s poor workmanship, providing the Respondent would be paid for the project by Metro Water, and thereby still realize a profit, albeit a smaller one. Then the project became embroiled in litigation after Metro Water refused to pay Respondent. 7. It appears that the parties have a good faith contract and/or monetary 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, and 11. 3. A good faith monetary and/or contract dispute, absent evidence of any 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 No. T08-1242 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, the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 30th, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012, Director

By ___________________________

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