ALJDEC

99F-T0768-ROC · Registrar of Contractors · 1999-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|CARPORTS ETC. INC., |§|CASE NO.: T99-0768 | | |§| | |Complainant, |§|DOCKET NO.: 99F-T0768-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 076528, Class A- of |§|DECISION AND ORDER | |LEFCO INC. (CORP), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: August 19, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared through its president, and authorized representative, Kirby Martin. The Respondent appeared through its general manager, and authorized representative, Hank Worth. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on August 19, 1999. The Complainant appeared through its president, Kirby Martin, and the Respondent appeared through its general manager, Hank 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 is the holder of a Class A- License issued by the Registrar of Contractors.

2. This is a commercial matter where the Complainant constructed a court yard Ramada (a metal shade structure) at an elementary school as a subcontractor for the Respondent which was functioning as a general contractor for the remodeling project at the school.

3. The Architect for the school project rejected the finished condition of the Ramada and required that corrective action be performed on the structure.

4. Credible evidence established that the Respondent notified the Complainant of the Architect’s order and requested the Respondent to comply with the Architect’s demand.

5. The Complainant declined to comply with the Architect’s request on the basis that it believed that it had fully complied with the terms and conditions of the parties’ agreement.

6. The Respondent then performed the required corrective action on the Ramada and back-charged the Complainant $1,019.00 for the asserted cost of applying a final coat of paint to the Ramada, installing some missing screws and for the cost of installing a temporary fence around the job- site.

7. The Complainant then filed the complaint at issue alleging that the Respondent had failed to pay it in accordance with the parties’ agreement.

8. There was no dispute that the corrective action had been performed prior to the filing of the complaint and that the assigned agency inspector was unable to view the Ramada prior to its final completion by the Respondent.

9. There was no dispute that the Respondent did install a temporary fence around the job-site. Credible evidence established that the temporary fence was necessary for a construction project taking place at a grade school that was in session.

10. Credible evidence, produced at hearing, established that the Respondent’s actions, in its performance of corrective action pursuant to the Architect’s demand and its claim against the Complainant for an offset of $1019.00, are found to be in good faith.

11. There was no dispute that the Complainant had furnished labor and materials for the construction of the Ramada and that the sum of $3,181.00 (the contract amount less the Respondent’s claimed offset) was owed to the Complainant. The Respondent shall, without conditions, pay the Complainant the undisputed sum of $3,18I.00 to the Complainant for its labor and materials. The Respondent’s claim for an offset for the remaining sum of $1,019.00 is found to constitute a good faith money dispute regarding the claimed offset which necessarily would involve a money adjudication and which should be resolved, if at all, in a civil court of competent jurisdiction.

12. 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 adjudicate and award money damages. Until and unless the disputed sum, having been found to be a good faith money dispute, is reduced to judgment by a civil court of competent jurisdiction no violation by the Respondent of the charged provisions of A.R.S. §32-1154(A) is supportable.

. . .

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Citation No. T99- 0768, together with the complaint upon which it is based, be dismissed.

Dated this 7th day of September, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of September, 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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