ALJDEC

97F-2475-ROC · Registrar of Contractors · 1997-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 1997. APPEARANCES: Complainant appeared through its owner, Joe French. Respondent appeared through its president and qualifying party, Dennis A. Qualtire. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

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

1. Respondent was the general contractor on a construction project for Kiva Container Corporation. 2. A review of the official records of the Registrar of Contractors reveals that Respondent possesses, in addition to residential and commercial plumbing licenses, the captioned Class B General Building Contractor license and Class B-02 General Small Commercial Contractor license, License No. 083903. Respondent’s Class B and Class B-02 licenses require that electrical contracting must be subcontracted to an appropriately licensed electrical subcontractor. Only Respondent’s Class B license is subject to these administrative proceedings.

3. In June of 1995, Respondent’s president and qualifying party, Mr. Qualtire, contacted Complainant’s owner, Mr. French, regarding the electrical equipment for the project. It was agreed that Complainant would supply the electrical equipment and find a licensed electrical contractor, on Respondent’s behalf, to perform the electrical work. 4. Respondent subsequently entered into a written agreement with Mr. French’s son, Joey French of Unicorn Electric, to provide the labor for the electrical portion of the job. 5. After Respondent properly subcontracted the electrical work on the project to a licensed electrical subcontractor, Unicorn Electric, the electrical subcontractor, became the responsible party for the electrical work for the project. 6. Shortly after Respondent entered into its agreements with Complainant and Unicorn Electric, those entities met with Edson Electric, a manufacturer’s distributor, and Challenger, Inc., an electrical manufacturer, on the jobsite concerning a master switch/meter panel that needed to be replaced with an updated version. Challenger, Inc. had manufactured the original unit that was to be replaced. Respondent was advised by Challenger, Inc. that it could manufacture a new unit with the exact size, shape and configuration of the existing unit, which would fit on the foot- print of the original unit, with no shutdown of the plant during the changeover. 7. Complainant quoted Respondent a price of $14,750.00, to make the equipment and ship it to the jobsite for inspection. Respondent accepted the quote in July of 1995. 8. The new master switch/meter panel was delivered to the jobsite in September of 1995. Respondent directed Unicorn and Complainant to inspect the unit. The electrical subcontractor inspected the unit and advised Respondent that it was fine. 9. During the first week of November, 1995, Respondent was informed by Complainant that the new equipment would not fit because the manufacturer, Challenger, Inc., had not made the entry box wide enough. Complainant further advised Respondent that an additional box would have to be ordered to replace the incorrect one. Respondent directed Complainant to undertake any necessary action to accomplish the proper installation by the end of November. 10. Complainant subsequently delivered a 30” wide wireway to the jobsite. Complainant invoiced Respondent the sum of $972.00 for the new item. The new electrical equipment was properly installed. 11. Respondent has refused to pay for the 30” wide wireway claiming that the item became necessary due to the failure of the electrical subcontractor, Complainant, the electrical distributor and manufacturer to properly specify, manufacture, deliver and install a proper replacement for the original equipment. 12. The evidence of record is insufficient to establish that Respondent is responsible for the non-conforming replacement equipment which resulted in the subsequent manufacture of the 30” wide wireway at an additional cost of $972.00. On the contrary, it is determined that the licensed electrical subcontractor, Unicorn Electric, was the party ultimately responsible for assuring that all electrical product(s) and electrical installation(s) on the project were proper.

CONCLUSIONS OF LAW

1. Electrical contracting is specifically excluded from the scope of work Respondent is permitted to perform under its Class B license. Respondent properly subcontracted the electrical work on the project to Unicorn Electric, a licensed electrical contractor. 2. Complainant has failed to sustained its required burden of proving, using credible and reliable evidence, that Respondent has violated the provisions of A.R.S. ( 32-1154 (A) (7), (11) and (23). On the contrary, the evidence of record is adequate to establish that there is a bona fide dispute between the parties in this matter. 3. Complainant’s failure to sustain its required burden of proving that Respondent has violated the provisions of A.R.S. ( 32-1154 (A) as alleged in the Citation and Complaint filed in this matter warrants a dismissal of these administrative proceedings.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed.

Done this day, October 28, 1997.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 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