ALJDEC

99F-S0122-ROC · Registrar of Contractors · 1999-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|REXCAVATING, |§|CASE NO.: S99-0122 | | |§| | |Complainant, |§|DOCKET NO.: 99F-S0122-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 076939, Class B-01 of|§|DECISION AND ORDER | |WADMAN CORPORATION (CORP), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: August 5, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through authorized employee, Rob Allred. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on August 5, 1999. The Complainant appeared on his own behalf and the Respondent appeared through its authorized employee, Rob Allred. 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 is the holder of a Class B-01 License issued by the Registrar of Contractors.

2. This is a commercial matter where the Complainant performed construction work as a grading subcontractor for the Respondent.

3. Credible evidence established that the Complainant gave the Respondent a written invoice for the initial work. However, the parties were in sharp dispute as to whether the invoice had been altered after the Respondent’s representative signed the invoice.

4. There was no dispute that the Complainant did perform grading work at the job-site.

5. Credible evidence established that the owner’s civil engineer rejected the depth of the Complainant’s grading and requested that the Complainant grade deeper. The Complainant refused to alter the grade.

6. The Respondent then requested that the Complainant alter the grade to obtain the approval of the owner’s civil engineer. The Complainant refused to increase the grade insisting that the owner’s civil engineer was in error.

7. The Respondent then regraded the site to increase the depth of the grade as required by the owner’s civil engineer.

8. The Complainant then presented its final invoice of $8,000.00 for payment. The Respondent declined to pay the Complainant asserting that, as a result of the Complainant’s incorrect grade and refusal to alter the grade, the Respondent suffered increased costs for a job-site shut down and for the costs of regrading the site that totaled $16,600.00.

9. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

10. Credible evidence, presented at hearing, established that the Respondent’s dispute regarding the Complainant’s alleged entitlement for payment was being made in good faith and constitutes a genuine good faith money dispute which would require a money adjudication and which should be resolved, if at all, in a civil court of competent jurisdiction.

11. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The Registrar of Contractors is not empowered to adjudicated and award money damages. Until and unless any claimed obligation is to judgment by a civil court of competent jurisdiction no violation, by the Respondent, of the provisions of A.R.S. §32-1154(A)(11) would be supportable.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Citation No. S99- 0122, together with the complaint upon which it is made, be dismissed.

Dated this 18th day of August, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of August, 1999 to:

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

Transmitted by:

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