ALJDEC

97F-2059-ROC · Registrar of Contractors · 1997-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 1997 APPEARANCES: Complainant appeared through its secretary, Boyce Fish and Respondent appeared through its owner, Dan Bush. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Pursuant to contract, Complainant agreed to provide Respondent with specified plated trusses and I-joists for use on a school remodel and addition project wherein Respondent was acting in the capacity of the rough framing subcontractor. The materials in question were all part of one contract and the contract cost for the materials was shown to total $8,802.00. It is important to note that the contract itself was not offered into evidence. Complainant contends that it has not been paid for the materials in question and said issue is discussed in the findings below. The trusses in question were manufactured in accordance with engineering drawings supplied by Respondent. Uncontroverted evidence of record established that Complainant supplied Respondent with the above-described building materials on or about December 1996.

It was undisputed that during the course of erecting the trusses that a significant number of trusses, but not all, fell from the roof of the new structure to the ground, thereby not only causing damage to the trusses themselves but also to other specified aspects of the construction project. Complainant contends that Respondent’s procedures for erecting the trusses were inadequate and Respondent contends that at least one of the fallen trusses was defective. It is important to note that the trusses in question were 50 feet 8 inches in length. At the time the trusses fell to the ground, Respondent demanded that Complainant supply him with new trusses at no charge and Complainant refused until the total bill for the first shipment of materials was paid. Respondent has failed to pay anything for these trusses and ultimately purchased replacement trusses from another source. The weight of the evidence of record was sufficient to support a finding that Respondent utilized improper and inadequate erection procedures in the truss installation, as manifested by utilizing a single hook hanger instead of a spreader bar to lift the trusses off the ground with a crane, staggered blocking instead of continuous blocking, inadequate number of bottom cord braces, lack of bracing in the angular webs, and trusses set excessively out of plumb. Thus, it is determined by the evidence presented at the hearing that Respondent’s failure to comply with minimum industry requirements for proper truss erection procedures caused the trusses to fall to the ground. It was undisputed that the I-joists were of a slightly shorter length than required by the applicable plans and specifications for said material. The weight of the evidence of record was sufficient to support a finding that the I-joists were not cut too short by Respondent in the field but were, in fact, delivered with the improper length. Upon being advised by Respondent that the I-joists were too short, Complainant agreed to accomplish an on site engineered repair of said materials. Although Respondent said he would consider such a repair, it was shown that the decision to accept the repair was not Respondent’s but that of others in the chain of command on said project. The record demonstrated that the general contractor on the project rejected a repair to the I-joists and demanded a replacement of said building materials. Although on-site engineered repairs for these type of materials are common to the industry, it was also shown that at times an owner, general contractor, or architect may reject such a repair and then replacement becomes necessary. Since this was a public works project and Respondent was not the general contractor for the project, the authority to accept the repair was not vested with Respondent but with others. It was demonstrated that Respondent was required to order new I-joists and certain costs were sustained by Respondent in this regard. Respondent claims backcharges against Complainant for the cost to replace the I-joists and for the fallen trusses. Respondent’s claimed entitlement for backcharges on the fallen trusses was not established by the evidence of record. However, the facts and circumstances presented herein support a finding that the costs for the replacement of the I-joists are a legitimate backcharge issue between the parties. Because of the allegations regarding backcharges for the I-joists, there exists a contested monetary dispute between the parties concerning the amount of payment due to Complainant. Respondent’s dispute in this regard is found to be asserted in good faith and under all of the circumstances, the finding of a liquidated sum due and owing is precluded absent a proper adjudication on the money dispute.

CONCLUSIONS OF LAW

The Registrar of Contractors is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. Until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction, no violation by Respondent of the provisions of A.R.S. §32-1154(A)(11) can be supported. Complainant has not sustained the requisite burden of proving the existence of a valid, liquidated debt properly due and owing by Respondent. The evidence of record was inadequate to support any finding of a violation by Respondent of the provisions of A.R.S. § 32-1154(A)(23) and (7).

…

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that Citation No. 97- 2059, together with the entire complaint upon which it is based, be dismissed.

Done this day, October 23, 1997.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of October, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826