ALJDEC decisions subject to certification as final

04F-A0190-ROC · Registrar of Contractors · 2004-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2004 APPEARANCES: Complainant was represented by its attorney, Guy Bluff and Respondent was represented by its attorney, Scott Miskiel. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant contends that Respondent abandoned a contract and seeks restitution for damages sustained as a result of the alleged abandonment. Respondent disputes the charges. These issues are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Eric Lively (“Lively”), one of Complainant’s members, appeared and testified at the instant hearing. Lively testified that Complainant was retained by RDM Construction, Inc. (“RDM”) to accomplish specified framing work on a new home construction project for Rudy Stadelman (“Stadelman”). b. Due to the fact that Lively believed he needed more manpower to accomplish the work on the Stadelman framing job, he entered into an oral agreement with Respondent’s, qualifying party, Rodney Sipma (“Sipma”) to have Respondent assist with the framing project. c. Uncontroverted evidence of record demonstrated that the contract between Complainant and Respondent was for the sum of $7,500.00, with 50% payable to Respondent when Complainant received its first draw from RDM and the balance upon completion of the framing work. In addition, the parties further agreed that any change orders added to the project would result in Complainant paying Respondent 1/3 of the change order billing to RDM. d. Evidence presented showed that the parties worked together on the Stadelman home framing project, on and off, from December 2002 through March 15, 2003. Complainant walked off the job sometime in February 2003 due to Lively’s complaints about the excessive change orders. Eventually RDM and Complainant were able to resolve their differences and Complainant returned to the jobsite. e. On or about March 4, 2003 Respondent presented Complainant with a bill for the final balance on their contract. The amount of said billing was $4,250.00, which included charges for work on change orders. Complainant refused to pay this bill, advising Respondent that the work had not been completed. According to Lively, at that point in time, there was still considerable work to be accomplished, including interior framing and special framing. f. Lively testified that Sipma advised him at the time of the aforementioned March 4th invoice that he had another job that he needed to get started on. Eventually, Sipma agreed to continue on the Stadelman project. g. The parties had a meeting on March 15, 2003. According to Lively, Sipma advised him that he was done on the project at this time. Lively testified that although the framing was mostly complete, there remained “pick-up” type framing work, such as blocking, completion of fireplaces, completion of interior arches, and work on the vestibule. h. According to the evidence of record, the March 15, 2003 meeting was on a Saturday. Lively testified that he advised Sipma that he needed him to be back on the jobsite the following Monday and that Sipma never returned to the project. i. Sipma testified that he felt the vast majority of the framing work had been completed and that the remainder could be finished by working all day on that Saturday (March 15) and then return on Sunday. According to Sipma, Lively did not want to work on that weekend and that Lively specifically advised Sipma, at that time, that he was released from any further work on the project. j. Randall Malone, RDM’s qualifying party, appeared at the instant hearing and testified. He indicated that he was present at the above- described March 15, 2003 meeting and heard Sipma indicate he would work that weekend, if Lively consented. Moreover, he testified that he heard Lively refuse the offer of the weekend work, that Respondent was free to leave the project, at that point in time, and that Complainant would finish the remaining framing work. Malone indicated that the framing work was 99% completed at this point in time. k. Malone testified that Lively was frequently late for work and that he took noticeably long lunches. l. Malone further testified that on March 25, 2003 he gave Complainant a punch list of work to be completed and/or repaired prior to Complainant receiving final payment for the framing work. According to Malone, Complainant came back and worked on some of the punch list items but that Complainant failed to complete the punch list. Ultimately, RDM hired others to complete the punch list. Due to these additional costs, plus delays on finishing the framing work, which Malone believed were attributable to Complainant, RDM back charged Complainant the sum of $3,312.00. It is this back charge, of $3,312.00, that Complainant seeks as restitution from Respondent. m. Stadelman appeared at the hearing and testified that he was on the jobsite on almost a daily basis, including March 15, 2003. He also believed that most of the rough framing was complete by March 15, 2003. n. Stadelman and Malone both agreed with Sipma, that for the most part Sipma was merely acting as a “cut” man during his work on the framing for the new home and that Complainant performed most of the actual nailing work. However, it should be noted that Sipma admitted that he did assist on some of the nailing work. o. Sipma testified to Lively’s erratic appearance on the jobsite, indicating that he was frequently late for the start of the work day and took extended breaks. According to Sipma, Lively had advised him from the time of the initial contract that the project would only take five (5) weeks and that it had taken much longer. Sipma believes that his work on the project from December to March more than fulfilled his contract obligations.

3. Complainant was RDM’s framing subcontractor. Thus, RDM properly served notice of all punch list items to Complainant. If Complainant believed that Respondent needed to assist on the punch list work, it was incumbent upon Complainant to personally notify Respondent to return to the job. No such notice was given to Respondent.

4. The weight of the evidence of record was sufficient to support a finding that on March 15, 2003 Sipma offered to complete two more work days on the job, over the weekend, said was offer was refused and Sipma was advised by Lively that he was free to go to his other project. Moreover, Complainant was shown to have not contacted Respondent to give him notice that there was a punch list that he would need to assist on completing. Thus, Respondent is not found to have abandoned the contract with Complainant. Complainant failed to sustain the requisite burden of proof necessary to establish any abandonment by Respondent or any of the other charged sections of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. A04-0190), together with the Complaint upon which it is based, be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, April 26, 2004

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 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