Electric Construction Co. v. Flickinger

472 P.2d 111, 12 Ariz. App. 500, 1970 Ariz. App. LEXIS 698
CourtCourt of Appeals of Arizona
DecidedJuly 22, 1970
DocketNo. 2 CA-CIV 871
StatusPublished
Cited by1 cases

This text of 472 P.2d 111 (Electric Construction Co. v. Flickinger) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Electric Construction Co. v. Flickinger, 472 P.2d 111, 12 Ariz. App. 500, 1970 Ariz. App. LEXIS 698 (Ark. Ct. App. 1970).

Opinion

KRUCKER, Judge.

This appeal challenges the propriety of injunctive relief (stayed pending appeal) granted to the Registrar of Contractors in proceedings instituted by him to prevent the appellant and other subcontractors from performing certain subcontracts on Davis Monthan Air Force Base without being licensed as contractors in Arizona.

The case was tried to the court, sitting without a jury. Extensive findings of fact and conclusions of law were made and judgment was entered declaring the subcontractors, including appellant, to be subject to the Arizona licensing statutes. An injunction thereafter was issued prohibiting the respective subcontractors from engaging in the business of contracting within the State of Arizona, and, specifically, from conducting any work at Davis Monthan Air Force Base, adjacent to the city limits of Tucson, Arizona, pursuant to their subcontracts. The injunction was stayed for a prescribed period upon condition that an appeal be taken within a specified period of time. Only one of the subcontractors, to wit, Electric Construction Company, has appealed.

The following is a summary of the facts as found by the trial court which we accept as true for lack of attack thereon. Electric Construction Company, a California corporation licensed in California but not in Arizona, was performing work at Davis Monthan1 pursuant to a subcontract with Forsberg and Gregory, a general contractor, also a California corporation unlicensed in Arizona. Forsberg and Gregory had entered into three separate contracts with the United States Department of the Army Corps of Engineers calling for the construction of airmen’s dormitories, an aircraft maintenance dock, an ammunition maintenance shop, an aircraft corrosion control facility, and a weapons calibration shelter.

[502]*502The subcontracts were independently entered into by Forsberg and Gregory and there was no requirement of review by the United States as a condition of its awarding the contract to Forsberg and Gregory. There was no direct dealing between the United States and the subcontractors, and anything relating to the performance of their work was taken up with the general contractor. The specialty work to be performed by the subcontractors was of a routine nature and all of the structures which were the subject of the contract would utilize Tucson gas, sewage, and electrical facilities and would connect with and be a general part of the systems which serve the inhabitants of Tucson and its environs.

The Registrar of Contractors, whose duty it is to enforce the contractor licensing laws of the State of Arizona, passes upon license applicants’ qualifications to perform various phases of construction work. There are more than 7,000 Arizona licensees, including all types of general and specialty contractors. Qualified applicants, whether resident or non-resident, can obtain licenses in a short period of time. The licensing requirements afford protection to the public in that complaints can be received and processed, service of process can be effected in the event that a claim is asserted, and a contractor’s bond is required to be posted.

The trial court also found that much substantial construction is done in Arizona with federal funds and that it is the practice in connection with expenditures through the United States Department of Health, Education and Welfare to bar the applicability of the Arizona tax preference statute, A.R.S. § 34-241, to general contractors but not to subcontractors. Application of the licensing statutes would neither handicap nor unduly burden government construction but, unless enjoined by the court, the subcontractors would continue to contract in Arizona without a license.

The trial court concluded:

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“15. Each of the defendants is engaged in an act of contracting which constitutes a violation of Title 32, A.R.S. ch. 10, and particularly A.R.S. § 32-115L
16. This Court has jurisdiction to give an injunction in the circumstances under A.R.S. § 32-1166, but in all the circumstances, concludes instead that it would be harsh and inequitable to give an injunction in these circumstances without staying it pending appeal. Therefore, defendants will be directed to apply for Arizona licenses and will meanwhile be enjoined, but the injunction will be stayed pending appeal so that the Court of Appeals may make such disposition of the matter as it sees fit.”

Both parties to this litigation admit inability to find a case directly in point, and our independent research has revealed none.

Electric Construction takes the position that the State of Arizona does not have the power to regulate a subcontractor who is in contractual privity with a general contractor having a contract with the United States when the contract is being performed on federal property. It relies on the case of Leslie Miller, Inc. v. State of Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231 (1956), which held that a federal contractor was immune from state licensing requirements. The United States Supreme Court stated:

“Mere enumeration of the similar grounds for licensing under the State statute and for finding ‘responsibility’ under the federal statute and regulations is sufficient to indicate conflict between this license requirement which Arkansas places on a federal contractor and the action which Congress and the Department of Defense have taken to insure the reliability of persons and companies contracting with the Federal Government. Subjecting a federal contractor to the Arkansas contractor license requirements would give the State’s li[503]*503censing board a virtual power of review over the federal determination of ‘responsibility’ and would thus frustrate the express federal policy of selecting the lowest responsible bidder.” 77 S.Ct. at 258-259.

The United States Supreme Court has held that, unless Congress provides to the contrary, a contractor who erects a government post office does not share any governmental immunity and is subject to the provisions as to types of material, fire hazards and the like which are covered by the New York City Building Code. See, James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596 (1940). It has also held that a state may impose a non-discriminatory tax on the activities of a contractor for the federal government. James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937); Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466, 54 S.Ct. 469, 78 L.Ed. 918 (1934); Atkinson v. State Tax Commission of Oregon, 303 U.S. 20, 58 S.Ct. 419, 82 L.Ed. 621 (1938); State of Alabama v. King & Boozer,

Related

Electric Construction Co. v. Flickinger
485 P.2d 547 (Arizona Supreme Court, 1971)

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Bluebook (online)
472 P.2d 111, 12 Ariz. App. 500, 1970 Ariz. App. LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/electric-construction-co-v-flickinger-arizctapp-1970.