ALJDEC

97F-2410-ROC · Registrar of Contractors · 1997-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 1997

APPEARANCES: Chuck Byers on behalf of the Complainant; Kim Kreinbrink on behalf of the Respondent.

ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT The parties stipulated that work performed at four locations in 1997, as described below, was performed by Respondent while Respondent held a Class L-61 license. The work performed by Respondent at the four locations consisted of installation of automatic security gates. The four locations mentioned above were: a) the Village in Lakewood, located at 1581 S. Lakewood Parkway, Phoenix, Arizona (“Lakewood”); b) The Retreat, located at 20808 North 27th Avenue, Phoenix, Arizona (the “Retreat”); c) The Meadows, located at 21512 E. Southern, Mesa, Arizona (the “Meadows”); and d) La Mariposa, located at 1440 South Val Vista Drive, Mesa, Arizona (“La Mariposa”). It is undisputed that at all times material to this matter, all of the above-mentioned properties were owned by Evans & Withycomb. Complainant contends that Respondent performed the above-mentioned work and outbid Complainant for such work while Respondent was not properly licensed to perform such work. Respondent’s president, Kim Kreinbrink, testified that prior to bidding on the above-mentioned projects, he already held an L-61 and C-61 license and contacted the Tucson office of the Registrar of Contractors to determine what licenses he needed for a new corporation, Signal Gates Inc. of Arizona (“Signal”) whose business would be the installation of automatic gates. Mr. Kreinbrink was informed that Signal needed to obtain L-5 and C-5 licenses. Notwithstanding the above, due to his desire to be assured that Signal would be properly licensed to hire electrical subcontractors Mr. Kreinbrink contacted Alan Felber, head of the licensing section of the Registrar of Contractors, who confirmed that he could not hire subcontractors for electrical if he obtained L-5 and C-5 licenses. Mr. Kreinbrink was informed that Signal needed to have a B-3 license and an L-61 license and Signal obtained such licenses. Subsequently, Mr. Felber, upon being contacted by Complainant, reconsidered Respondent’s licensing situation and informed Respondent that Respondent needed to obtain a C-5 license. It is undisputed that once contacted by Mr. Felber and advised that C-5 licensure was needed, Respondent ceased performing all installation work related to automatic gates until Respondent obtained a C-5 license to install automatic gates. The evidence established that Respondent kept Evans & Withycomb advised as to Respondent’s licensing status and of the situation concerning whether Respondent was properly licensed to install automatic gates. Charlie Gates, who was construction superintendent at Evans & Withycomb at all material times, corroborated the testimony of Mr. Kreinbrink as set forth above. It is interesting to note, that Mr. Gates, who was involved in the bidding process for Evans & Withycomb for the above-mentioned work at the above-mentioned properties, is currently employed by Respondent. However, that, in and of itself, is not evidence of any wrongdoing by Respondent. Mr. Gates testified that upon being notified by Respondent that there may be a problem with Respondent’s licensing status, he contacted the Registrar of Contractors and obtained the same information that Mr. Kreinbrink had initially obtained. Mr. Gates was satisfied with Respondent’s licensing status at that time and did not consider the issue again until further contact from Mr. Kreinbrink concerning Mr. Felber’s opinion that Respondent needed to obtain a C-5 license to continue to perform the above-mentioned work at the above-mentioned properties. Mr. Kreinbrink testified that the work performed by Respondent at the above- mentioned locations was as follow: a) Lakewood- Respondent performed the low voltage work and Respondent admits that it now knows that such work requires a L-11 license; b) Retreat-Respondent dug trenches and laid conduit; c) Meadows and La Mariposa--a licensed electrical subcontractor supervised Respondent’s installation of high and low voltage, Respondent dug trenches, Respondent helped install wiring, and performed the electrical connections. On July, 1997, Respondent spoke with Registrar of Contractors Inspector Dick North and was advised that Respondent needed to stop low voltage and wiring work unless a correctly licensed electrical contractor was working on site. Respondent contends, and the evidence demonstrates, that Respondent complied with Inspector North’s directive and had a licensed electrical subcontractor at the sites when Respondent performed the above-mentioned work. Respondent contends, and the evidence established, that Respondent attempted to comply with the State’s contracting laws, sought guidance from the Registrar of Contractors and complied with the information obtained from that agency. Yet, Respondent does admit that certain work was performed out of scope at the above-mentioned properties. However, at the time when such work was performed, Respondent relied upon information obtained from the Registrar of Contractors and was unaware that such work was being performed out of scope of its license.

CONCLUSIONS OF LAW

The evidence of record established that Respondent violated the provisions of A.R.S. §32-1154(A)(7)and (17) but did not establish a violation of A.R.S. §32-1154(A)(14).

. . .

RECOMMENDED ORDER

Based on the above, and taking into consideration the diligence of Respondent in attempting to comply with the State’s contracting laws by seeking and complying with the advice obtained from the Registrar of Contractors, and that Respondent currently holds the proper license necessary to perform the work at issue herein, it is recommended that the citations and complaints issued in case numbers M97-1635 and 97-2410 be closed. Done this day, December 1, 1997.

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________ -----------------------

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