Bivins Construction v. State Contractors' Board ( 1991 )

Mowbray, C. J.,

dissenting:

Respectfully, I dissent.

General contractor Bivins stiffed subcontractor Pipes Paving by refusing to pay money owed under the contract. The State Contractors’ Board (hereinafter “the Board”) listened to all of the relevant evidence and unanimously concluded that Bivins Construction’s refusal to pay any amounts owed under the contract was improper. The decision of the Board should be upheld.

The majority finds that certain procedural requirements were violated and that these violations warrant reversal. I find that there were no violations of any substance which resulted in prejudice to Bivins.

The cross-examination of William Pipes was rather lengthy, consisting of over eleven pages of trial transcripts. Near the end of that cross-examination, the Board inappropriately limited counsel to the scope of direct examination. While the limitation was wrong, no prejudice ensued. Counsel did not object to the limitation imposed by the Board, nor did counsel make an offer of proof as to information which would have been forthcoming absent the restriction. Moreover, counsel was offered an opportunity to ask additional questions. I submit that under such circumstances, this issue should be precluded from judicial review. See PET v. Department of Health Services, 542 A.2d 672, 683 (Conn. 1988) (in administrative hearing before medical examining board, objection and offer of proof is proper way to vindicate evidentiary ruling); see also Application of Portland General Elec. Co., 561 P.2d 154, 160 (Or. 1977) (the requirement that a party must have objected before the agency to errors he asserts on judicial review is one facet of the general doctrine that a party must exhaust his administrative remedies).

In addition to restricting the cross-examination of William Pipes, the Board restricted the testimony of Mr. Fred Knobel. Mr. Knobel was a competitor of Pipes Paving who testified that Pipes Paving was not using its equipment to break up rock. However, Mr. Knobel also testified that he did not go onto the job site until the end of July, which would have been after Pipes Paving was ordered to remove its equipment from the site. The Board, properly finding Mr. Knobel’s testimony to be irrelevant (and incredible), declined to hear further testimony.

Other than these two incidents, there is nothing in the record to substantiate the majority’s contention that Bivins was denied due process. The majority’s statement that Bivins was denied opportunity to call witnesses or present documents is without any basis in fact.

A separate question addressed by the majority is whether the Board has the authority to resolve contract disputes. I suggest that the Board should have limited authority to act in a “quasi-judicial” capacity.

While the Board does not have a blank check to resolve contract disputes, it is undisputed that the Board has some discretion to impose conditions upon relicensing. See NRS 624.300. I submit that the Board may legitimately impose a conditional suspension pending payment by a general contractor of monies owed to a subcontractor, provided that the action taken is primarily disciplinary in nature.

In the present case, since Bivins’ employees signed the invoices in question, liability is clear. Where there is no genuine dispute as to liability, the Board should have the authority to conditionally suspend a contractor’s license pending payment of the contract obligation. Such an action may properly be viewed as a disciplinary measure.