ALJDEC decisions subject to certification as final

07F-G0818-ROC · Registrar of Contractors · 2007-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2007 APPEARANCES: Earl Robinson appeared on behalf of Complainant A-1 Patch & Pave. Jeff Kerr and Barry Hunnel appeared on behalf of Respondent Visus Engineering Construction, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Visus Engineering Construction, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. Visus Engineering Construction, Inc. (“Visus”) is the holder of a Class A- license (No. 191220) and a Class KB-01 license (No. 191221) issued by the Registrar of Contractors (“ROC”). Jeff Kerr is Visus’ Chief Executive Officer and Barry Hunnel is Visus’ qualifying party. 2. Visus contracted with Complainant Earl D. Robinson and A-1 Patch & Pave (“A-1”) to perform asphalt paving for three projects. The first project was the paving of a cul-de-sac located at 82nd Street and Vista Drive. A-1 performed this work on May 26, 2006 and billed Visus in the amount of $1,850.00. Also on May 26, 2006, A-1 performed the paving work for a safety platform (speed bump) located at 85th Street and Roosevelt. A- billed Visus $1,850.00 for this work. On or about May 31, 2006, A-1 paved an area of roadway approximately 800 feet by seven to nine feet wide at 60th Street and Oak, in order to widen the road, and billed Visus in the amount of $1,850.00. 3. On or about August 25, 2006, Visus issued a check to A-1 in the amount of $3,185.00. A-1 did not cash the check, as it believed it was entitled to full payment. 4. On November 8, 2006, A-1 filed a complaint against Visus with the ROC alleging the following: Billed above contractor for 3 different job sites in the amount of $5550.00. Contractor only paid $3185.00. Stated employee of A-1 took a nap. He was waiting for asphalt to cool so he could finish roll. Rest of crew went to 2nd jobsite. We have not cashed ck because we’re not paid in full.

6. Susan Emerson, A-1’s secretary, testified at hearing. Ms. Emerson testified that she was contacted by Sonya from Visus, to inquire about A-1’s rates for paving. Ms. Emerson testified that she advised Sonya that A-1 charges $400.00 per hour with a four hour minimum, and a $250.00 mobilization fee for each project. Ms. Emerson testified that she was told there would be three separate projects. As such, A-1 charged Visus for three mobilizations. Notwithstanding that the first two projects were in close proximity, A-1 had to mobilize its equipment to get to the first project and then re-mobilize to get from the first project to the second project site. 7. Mr. Hunnel testified that for the Oak Street project, A-1 arrived with a two man crew when it should have had a four to five man crew, and that because of the lack of manpower, the paving was poorly performed, and that an inch and a half had to be milled out and re-paved and that the outer edge of the roadway was not built up because A-1 had no way to control the paver with its scant crew. Mr. Hunnel further testified that A-1 was late to this jobsite. 8. Mr. Kerr testified that A-1 was to be on the jobsite prior to the 4:00 a.m. scheduled asphalt delivery time. Mr. Kerr testified that A-1 did not arrive until 4:45 a.m. Consequently, three asphalt trucks were waiting for forty-five minutes to unload. Visus submitted into evidence a Mesa Material Daily Trip Report indicating a one hour delay at the jobsite. See Exhibit A. Mr. Kerr testified that Visus back charged A-1 $910.00 as a stand-by charge due to this delay, as well as a $450.00 back charge for poor work resulting from a lack of manpower, as well as other miscellaneous charges. 9. Mr. Robinson blamed Mr. Hunnel for the issues with this job, testifying that the asphalt trucks were on stand-by not because A-1 was late to the jobsite, but rather because Mr. Hunnel ordered all of the material to arrive at once, as opposed to staggering the delivery times. However, Mr. Robinson acknowledged that A-1 was late to the jobsite and that it arrived with a two man crew because two men did not show for work. 10. Cesar Quezada, A-1’s foreman, testified that a two man crew was sufficient for the job. However, Mr. Quezada also testified that he had previously performed this type of job with a three man crew and that the work was slow. Mr. Quezada testified that the scope of work changed and that A-1’s paver could not access the area, resulting in A- 1’s crew having to “wing” material in. Mr. Quezada acknowledged that a change order had not been executed and that A-1 did not obtain a waiver for its work from Visus due to this change. Mr. Quezada further testified that A-1 was supposed to be on the jobsite at 3:30 a.m. because the asphalt was to arrive at 4:00 a.m., and that A-1 was approximately thirty minutes late. 11. The Administrative Law Judge carefully considered the evidence and finds that a good faith dispute exists between A-1 and Visus as to the amount of the balance due from Visus to A-1. In view of the existence of such good faith dispute, the Administrative Law Judge is unable to determine at this point that a liquidated sum in addition to the $3,185.00 tendered to A-1 by Visus, is due and owing to A-1 in violation of the applicable charged provisions of this State’s contracting laws. CONCLUSIONS OF LAW 1. In this proceeding, A-1 bears the burden to prove, by a preponderance of the evidence, that Visus is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and/or (A)(11) as charged by the ROC in its April 9, 2007 Citation and Complaint. See Arizona Administrative Code R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Administrative Law Judge concludes that A-1 has failed to meet its burden of proof as to both of the ROC charges. 4. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” Visus acknowledged that it owes A-1 the sum of $3,185.00, and has attempted to pay A-1 $3,185.00, and A-1 has refused to accept that sum as full payment for its services. A-1 has not sustained the requisite burden of proving the existence of any additional valid, liquidated debt properly due and owing by Visus. Therefore, the Administrative Law Judge concludes that Visus has not violated the provisions of A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that A-1 failed to establish that Visus committed a wrongful act that substantially injured A-1, as A-1 failed to establish by substantial and probative evidence that Visus owes it any additional monies other than the $3,185.00 Visus offered to pay A-1. Therefore, Visus cannot be said to have violated A.R.S. § 32-1154(A)(7). RECOMMENDED ORDER In view of the foregoing, it is 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 will be 40 days from the date of that certification. Done this day, August 29, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of August, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 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