ALJDEC

99F-M1179-ROC · Registrar of Contractors · 1999-10-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 1999 APPEARANCES: Complainant : John Makarchuk, President, Diversified SouthWest Contractors (“DSW”) Contractors Corp.; witness Ginny Benesh. Respondent : Stephen Naylor, President, V W Dig, Inc.; witness/employee Kevin Hatch; witness/employee Phil Price. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Respondent is an Arizona corporation, doing business in the state of Arizona as V W Dig, Inc., holding a Class A-12 license (Engineering Contracting, sewers, drains and pipe laying) issued by the Registrar of Contractors. 2. Complainant and Respondent entered into a written contract on February 4, 1999 whereby the Respondent subcontractor agreed, among other requirements, to furnish material and labor necessary to excavate and backfill electrical trenching for a project situated at 1286 W. Chandler Blvd., Chandler, Arizona (Chandler Small Animal Clinic). In consideration for the work performed and materials provided, Respondent has been paid $1,451.50.

3. Included within the contract was a provision that made the subcontractor financially responsible for damage done to the project site or building(s) thereon, resulting directly or indirectly from an act of the contractor (“Rules and Regulations”). Further, the relevant contract included an indemnity clause whereby the subcontractor agreed to reimburse and indemnify the contractor for claims and liabilities arising out of the subcontractor’s performance. (“Terms and Provisions” 15).

4. On February 2, 1999, one of Respondent’s operators struck an existing live power line which resulted in a temporary loss of electricity (2.5 days) to the on site structure, Chandler Small Animal Clinic, as well as fire damage to the building and property. The parties stipulate that Salt River Project (“SRP”) Blue Stake has reimbursed the animal clinic $1700.00 for damage done as a result of the incident and $527.00 to Complainant Diversified SouthWest Contractors. DSW filed a complaint with the Registrar of Contractors concerning Respondent’s alleged failure to satisfy the terms and conditions of its agreement, all in violation of A.R.S ( 32-1154 (A) (7) and (11).

5. Complainant seeks an additional $1,377.50 on its own behalf, representing costs incurred, and $1,802.86 on behalf of the Chandler Small Animal Clinic.

6. The weight and sufficiency of the evidence establishes that Complainant has settled its claim with SRP Blue Stake for the alleged damages. However, neither party was able to supply the record with indicia of a settlement and release.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S ( 41-1092.

2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of the evidence, Complainant has failed to establish that Respondent contractor violated A.R.S ( 32-1154 (A) (7) or (11) as charged in the Citation and Complaint. It has not been shown that Respondent has committed a wrongful or fraudulent act resulting in injury to another person or that Respondent has failed to pay Complainant money to which Complainant is entitled under the relevant contract between the parties.

RECOMMENDED ORDER

In view of the foregoing, IT IS RECOMMENDED that Registrar of Contractors dismiss this complaint.

Set forth this 12th day of October 1999.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826