ALJDEC

98F-2498-ROC · Registrar of Contractors · 1998-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 11, 1998 APPEARANCES: Complainant appeared through its owner, Leonard Roberts and Respondent was represented by its attorney, Steve Cheifetz. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Complainant installed the marble and granite into a new custom home construction project wherein Respondent was acting as the general contractor. Although Complainant has been paid a significant down-payment for the marble and granite work, he has not been paid the balance that he claims is due and owing. Complainant contends that Respondent is responsible for the payment at issue herein and these allegations are discussed in the findings below. 2. The following salient facts were adduced at the hearing and are important to note: a. The custom home in question was being constructed for Norma and Patricia Kerley (hereinafter “Kerley”). b. Notwithstanding the fact that Respondent was acting as the general contractor on the project, Kerley contacted Complainant for the marble and granite work. Kerley was the only person Complainant had any contact with in regard to the bidding process. Moreover, the contract itself and all changes to the contract were discussed and negotiated between Kerley and Complainant, without any participation by Respondent. c. Ultimately, Kerley accepted Complainant’s bid for the marble and granite work and advised Complainant that her general contractor would handle all of the contract’s required payments. Despite the fact that Kerley had signed a construction contract with Respondent, she was still apparently under the impression that she was doing business with the initial company she contacted for the project, Renaissance Custom Homes. Thus, Kerley advised Complainant to send the contract to Renaissance Custom Homes. d. Although Complainant faxed the contract to Renaissance Custom Homes and per Kerley’s instructions placed their name on the proposal, it was undisputed that Respondent contacted the company financing the construction loan to release funds to Complainant for the down-payment on the marble and granite construction project. e. Complainant received the down-payment directly from the construction loan lender and not Respondent. Respondent did not sign the down-payment check to Complainant and Respondent’s name does not appear anywhere on said down-payment check. f. Respondent did not provide any supervision on the marble and granite work and, in fact, Complainant did not meet anyone from Respondent’s company until the date of the instant hearing. The only person Complainant saw on the jobsite while working there was Kerley. g. It was undisputed that Complainant completed the work set forth in the contract. Upon completion, he sent several billings for the balance due to Respondent and has not received any payment for the balance claimed due and owing. h. The original contract between Respondent and Kerley called for an allowance of $8,068.00 for marble and granite work. The contract and agreed extras from Complainant, which Kerley negotiated and accepted, was at a cost of over $17,000.00. Complainant has received $7,535.00 in the above-described down-payment. i. Kerley’s construction loan was depleted by Respondent during the course of construction and Kerley and Respondent are embroiled in a money dispute over approximately $80,000.00 in extras, which Kerley refuses to pay to Respondent. 3. Notwithstanding the fact that Respondent was the general contractor on the project, the instant record fails to support a finding that Respondent acted as anything more than a mere conduit for Complainant to receive the down-payment check (which was almost as much as the entire tile and granite allowance set forth in the construction loan). Respondent did not request a bid from Complainant, did not supervise Complainant’s work on the project, never accepted any extras on the project, and never entered into any contract (written or verbal) with Complainant. The mere fact that Respondent acted as a conduit to see that the construction loan lender tendered the down-payment to Complainant is not found to create any contractual liability for Respondent to pay, out of its own funds, the balance claimed due and owing by Complainant . 4. If anyone has any further responsibility for payment to Complainant, it is Kerley and not Respondent. Based on all of the salient facts presented herein, Complainant has failed to sustain the requisite burden of proof necessary to establish any contracting law violations by Respondent.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, November 16, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________

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