ALJDEC

98F-2287-ROC · Registrar of Contractors · 1998-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 1998 APPEARANCES: Gwynne Kuhse appeared on behalf of the Complainant; Kermit Lennick, president, appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. Complainant and Respondent verbally entered into a business relationship approximately 3-4 years ago whereby at the request of Respondent, Complainant would perform plumbing work at jobsites selected by Respondent. 2. Upon completing plumbing work, Complainant would submit statements to Respondent showing the time spent performing the requested work and the billing for small parts that Complainant supplied to Respondent. 3. Complainant contends that for plumbing work performed in 1997, Complainant submitted invoices which have not been paid by Respondent. 4. It is uncontroverted that concerning the above-mentioned verbal arrangement between Complainant and Respondent, there was no discussion or agreement as to the hourly labor rate Complainant would charge Respondent or the amount of the mark-up for parts Complainant would charge Respondent. 5. In the invoices at issue, Complainant charged Respondent an hourly labor rate of $50.00 per hour and charged for small parts supplied to Respondent. 6. Respondent contends that previously, Complainant has charged an hourly labor rate of approximately $20.00 per hour, and for the work in question, the Complainant is charging a rate of $50.00 per hour. Further, Respondent questioned the Complainant’s charges for parts and presented credible evidence from two plumbing supply houses showing that the price of items charged by Complainant are two to three times the wholesale cost. 7. Under the facts and circumstances presented, it is determined that Respondent has presented a reasonable basis for not paying Complainant for the invoices in question and there exists a good faith contractual dispute as to the amount of money Respondent owes Complainant for the work performed as reflected on the invoices at issue. An administrative license disciplinary proceeding before the Registrar of Contractors is not the appropriate forum to adjudicate a good faith dispute over money and the more appropriate forum for this matter is a civil court of competent jurisdiction. CONCLUSIONS OF LAW The evidence of record failed to establish that Respondent violated the provisions of A.R.S. §§32-1154(A)(7) (11) or (23). RECOMMENDED ORDER It is recommended that the citation and complaint issued in Case Number 98-2287 be dismissed. Done this day, August 25, 1998.

_________________________________ LEWIS D. KOWAL Administrative Law Judge

Original transmitted by mail this ____ day of August, 1998, to:

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

By _______________________________

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

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