ALJDEC decisions subject to certification as final

04F-F0203-ROC · Registrar of Contractors · 2004-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2004 APPEARANCES: Complainant appeared through it president and qualifying party, Harold Huffman (“Huffman”) and Respondent appeared through its managing member, John Griffin (“Griffin”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

FINDINGS OF FACT

1. Pursuant to verbal agreement, Respondent retained Complainant to perform specified steel work on a new home construction project.

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

a. Huffman testified that he entered into the verbal contract with Respondent’s superintendent. The initial work involved putting in steel beams and the arrangement provided that Complainant would be paid on an hourly rate of $55.00 per hour. b. Complainant completed the initial work and billed Respondent for the work at the aforementioned $55.00 per hour rate. This billing was promptly paid in full by Respondent. c. Two months after completing the initial steel work on the project, Respondent called Complainant back for the second phase of the steel work. Complainant returned to the project and completed this second phase. d. Complainant billed Respondent a total of $2,973.00 for the second phase of the steel work and the evidence of record showed that Respondent only paid $2,175.25 on said billing, leaving a balance of $797.75 unpaid on said billing. When the parties could not resolve their differences regarding the unpaid balance, Complainant filed the instant complaint with the Registrar of Contractors. e. Griffin testified that he had no problem with Complainant’s work on the project but he objected to the fact that Respondent billed out the second phase of work at $60.00 per hour, instead of the original agreed sum of $55.00 per hour. In addition, he objected to the fact that Complainant was also billing for its travel time to and from the project. f. Huffman testified that the initial billing also included travel time. However, the travel time was greater on the second billing, due to the fact that during the two (2) month gap between the first phase and the second phase, he had moved farther away from the construction project. g. Huffman, also testified that he had raised his hourly rate after the first billing, due to increases in his costs. h. Griffin testified that he was unaware on the first billing (which he paid in full) that Complainant was charging for travel time, since he would not have agreed to pay for said cost. He indicated that the only way he realized that the second billing included travel time, was when he saw a twelve (12) hour day billing for work performed in March when there would not have been enough daylight to have worked for such an elongated period of time. i. Griffin further testified that the nature of steel work in residential construction is that it always includes two separate phases and other aspects of the construction work must be completed before the second steel phase can begin. According to Griffin, his agreement with Complainant was to pay $55.00 per hour and that included both phases on the project. He objects to Complainant raising the hourly rate on the project without notice.

3. Complainant agreed to perform construction work without a written agreement. It is not unusual for disputes to arise regarding the actual terms and conditions of verbal agreements and thus, it is always recommended that contractual terms be placed into writing before any construction work begins, in order to avoid disputes such as the one presented herein.

4. The evidence of record was sufficient to support a finding that the parties entered into an agreement which provided that Complainant would be paid $55.00 per hour for all work performed on the project. It was improper for Complainant to raise the hourly rate for said work during the course of working on the same construction project.

5. In addition to the fact that Respondent should not be held responsible for the addition to the hourly rate, there did not appear to be any meeting of the minds regarding whether or not Respondent would pay for Complainant’s travel time. Thus, Respondent should not be held responsible to pay the additional $5.00 per hour, nor the travel time portions of the second billing. Complainant failed to sustain the requisite burden of proof that Respondent failed to pay for services rendered in violation of the applicable charged section 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, 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, December 20, 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