ALJDEC decisions subject to certification as final

08F-1841-ROC · Registrar of Contractors · 2008-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2008. APPEARANCES: Atchison Construction, Inc. was represented by its president and qualifying party, Dave Atchison. Reliable Concrete, LLC did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Reliable Concrete Solutions, LLC (“Respondent”) is the holder of License No. 223849, a Class K-09 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Atchison Construction, Inc. (“Complainant”) is the holder of License No. 155323, a Class B-1 contracting license, issued by the Registrar. 3. On or about July 22, 2007, Complainant hired Respondent to perform concrete work on a project located at 3050 W. Camelback Road, Phoenix, Arizona. 4. Complainant gave Respondent three to four weeks lead time to perform the pouring of a sidewalk and handicap ramp. Complainant rented and installed barricades in Camelback Road to divert traffic away from the area to be poured. Respondent failed to appear as scheduled. 5. Respondent ultimately did arrive at the jobsite and performed the scheduled scope of work. 6. Respondent’s sidewalk and handicap ramp were later inspected by a city inspector. The sidewalk passed inspection but the ramp at the corner of 31st Avenue and Camelback Road did not pass inspection. 7. Complainant’s staff then contacted Respondent to perform remedial work to the ramp. 8. Respondent’s remedial work to the ramp and the pouring of an additional sidewalk on 31st Avenue were scheduled. The city inspector was present at the time the work was scheduled to be performed by Respondent. Respondent failed to appear at the scheduled time. 9. The owner of the property for which the concrete work was being performed went to another jobsite where Respondent was working. Respondent’s employees told the owner that they were too busy to perform the remedial work and additional sidewalk for the owner’s project. 10. Complainant then sent Respondent a 24-hour termination notice. 11. Respondent’s workers appeared at the subject project the day after the termination notice was sent to it. Respondent wanted a big change order to excavate their concrete ramp and to re-pour it. Respondent wanted a sizable additional payment for performing the required remedial work to the ramp. 12. Complainant’s employee informed Respondent’s employee that the remedial work was required to be performed under the parties’ contract and at no additional charge to Complainant. 13. Respondent’s worker then advised Complainant’s employee that Respondent was going out of business. 14. Complainant was forced to hire another subcontractor to perform the remedial repairs to the ramp at an additional cost of $1,500.00. 15. Complainant attempted to go after Respondent’s bond to recoup the additional expense incurred by Respondent’s failure to perform the remedial repairs, but it was told by the bonding company that only the project owner could file a claim against the bond. 16. Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. The Registrar designated the Complaint as Case No. 08-1841. 17. The Registrar issued a Citation and Complaint in Case No. 08-1841 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 18. The Registrar forwarded Case No. 08-1841 to the Office of Administrative Hearings, an independent agency, for formal hearing. 19. The Registrar issued a Notice of Hearing in Case No. 08-1841 advising the parties of the time, date, and location of the scheduled formal hearing. The Registrar sent the Notice of Hearing to the parties at their addresses of record with the Registrar. 20. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of an authorized representative for Respondent. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 21. Respondent’s construction of the handicap ramp did not meet minimum workmanship standards. Respondent was given the opportunity to repair its deficient workmanship, but declined to do so. 22. Respondent’s deficient workmanship and failure to perform necessary remedial repairs are wrongful acts that substantially injured Complainant. Complainant had to incur additional expenses to correct Respondent’s deficient workmanship. 23. A review of the Registrar’s official records reveals that Respondent’s contracting license was suspended by operation of law for lack of bond on March 22, 2008 and again by operation of law for nonrenewal on September 1, 2008.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. The factual basis for this Conclusion is Respondent’s deficient workmanship in constructing the handicap ramp. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Complainant was substantially injured by Respondent’s deficient workmanship and its failure to perform required remedial repairs to its workmanship. 5. Pursuant to A.R.S. § 32-1154(C), the suspensions of Respondent’s contracting license by operation of law does not deprive the Registrar of authority to impose disciplinary action against the license for the above-provided violations.

RECOMMENDED ORDER Respondent’s License No. 223849 shall be revoked on the effective date of the Order entered in Case No. 08-1841. 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 45 days from the date of that certification. Done this day, September 24, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Armando Contreras , Acting Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826