ALJDEC

98F-2209-ROC · Registrar of Contractors · 1998-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 28, 1998.

APPEARANCES: Complainant, Alex Alvarez, appeared in his own behalf.

Respondent, Vega Construction and Remodeling, Inc., appeared through its President and qualifying party, Luis Ramon Vega.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth ____________________________________________________________________

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 agreed to and did perform extensive remodeling work at Complainant’s existing residence pursuant to a written proposal, as subsequently modified, as well as pursuant to plans and specifications.

2. The total contractual price was stated to be $45,289.00, of which the amount of $44,000.00 has been paid by Complainant to Respondent, leaving an unpaid balance of $1,289.00.

3. It was admitted that, during the course of construction, numerous and varied additions or changes to the original work were requested by the property owner and made by the contractor. Complainant continued to express a willingness to pay for all such added or changed work that may have entailed extra costs, but neither the description of such work nor the specific cost thereof was made the subject of any written change order or separate amendment agreement. No added monies had been paid or tendered by Complainant to Respondent.

4. After the jobsite work by Respondent had progressed to a point short of full completion and after all but a small balance of the last periodic payment had been transmitted, ongoing friction between the parties escalated to a degree which prompted the termination of further construction activity. The deterioration of the parties’ prior relationship has continued and was very evident at the hearing. Complainant communicated his intention not to allow Respondent to return to the premises either for correcting several deficiencies or for completing any omitted items of work.

5. The testimony of the principal parties was sharply conflicting with respect to the contents of conversations and description of events that had transpired. No valid basis is found to exist for the disbelief of either party’s version. In any event, Complainant arranged for the correction and/or completion work through other contractors or individual workmen. Complainant is, in reality, seeking to recover all or part of the costs incurred in accomplishing necessary remedial work and for completing the project through others. The bulk of the numerous documentary exhibits and most all of the testimonial evidence focused upon the conflicting monetary claims between the parties.

6. The Registrar of Contractors is not the appropriate forum in which to seek and obtain monetary awards of damages for allegedly not receiving alleged contractual

entitlements. This is especially significant when the administrative action is before the very State agency charged with enforcing the State’s contracting laws, since there was a showing that some portion of the asserted expenditures may have been for the services of unlicensed persons. To the extent that the parties in this case desire to pursue possible claims, counterclaims or set-offs with respect to unfinished items of work, to materials not furnished, to incorrectly performed work or to extra work or materials never paid for, either or both parties should be left free to have their respective positions fully adjudicated by a civil court of competent jurisdiction. If and after any monetary entitlements are successfully proven by Complainant and a civil judgment is obtained against Respondent so as to liquidate the amount due and owing, Complainant would be able to re-file a new complaint with the Registrar if the judgment is allowed to remain unsatisfied by Respondent.

7. When it became patently clear that the parties were seeking to have this tribunal grant declaratory relief or to resolve their respective pecuniary claims, counterclaims and set-offs, the undersigned Administrative Law Judge determined that no useful purposes would be served by continuing the presentations by both parties, especially in light of indications that the propriety of the contracting status of several specialty workman providing original services on behalf of Respondent and subsequent construction efforts for the benefit of Complainant was somewhat questionable. Such status may potentially have a bearing on the ultimate monetary rights and/or defenses of the parties. Prior to completion of the defense evidence and testimony, the evidentiary hearing was terminated without prejudice to the rights, if any, of either party to initiate and to pursue appropriate civil court actions based upon the conflicting allegations. ……. …….

CONCLUSIONS OF LAW

1. The sharply disputed conflicting financial claims between the parties to this administrative action makes this tribunal an inappropriate forum for hearing, determining and awarding money damages in favor of or against either party. This disciplinary proceeding should be dismissed without prejudice to the rights of the parties to pursue available civil remedies for assessing and collecting such damages.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number 98-2209 be dismissed without prejudice.

Dated: August 11, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN: Joyce Armijo -----------------------

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