ALJDEC decisions subject to certification as final

10F-2088-ROC · Registrar of Contractors · 2010-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2010 APPEARANCES: Blade Runners, Inc. was represented by its authorized representative, Bernard Emery. Concast Corporation was represented by its authorized representative, Dominic Jones. 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. Blade Runners, Inc. (“Blade”) is the holder of License No. 086439 issued by the Registrar of Contractors (“Registrar”). 2. Concast Corporation (“Concast”) is the holder of License No. 223860, Class B-01 contracting license, and License No. 201875, a Class A- contracting license, issued by the Registrar. 3. On December 7, 2007, Blade filed a written Complaint with the Registrar alleging nonpayment by Concast for “slab sawing, concrete & asphalt” work performed by Blade for Concast on the following three projects: 1) $165.40 for the project located at 125 E. McLellan, Mesa, Arizona; 2) $1,410.00 for the project located at 640 S. Mill, Tempe, Arizona; and 3) $1,656.40 for the project located at 205th Place and Ocotillo in Queen Creek, Arizona. 4. The Registrar designated Blade’s Complaint as Case No. 10-2088 against Concast’s License No. 223860, and as Case No. 10-2088W against Concast’s License No. 201875. 5. Blade and Concast have done work together for some time. 6. Concast would telephone Blade with a request for work. Robbie Fox was often the representative of Concast who would telephone Blade. Blade would then dispatch employees to perform the requested scope of work. After performing the work, Blade’s employees would have a Concast employee sign the work order or invoice for the project. Concast historically paid Blade late for its work. 7. At hearing, Blade presented credible evidence that Concast requested Blade to perform the specific work on each of the said projects, that Blade performed such work without any complaints from Concast, that Blade had someone from Concast sign the work order or invoice approving the work performed for the stated price, and that Concast has not paid Blade for the outstanding balances due. 8. The work performed at 640 S. Mill Avenue in Tempe was at a restaurant named Robbie Fox’s Public House. 9. On the Queen Creak Project, Concast requested a payment of $20,022.41 from the Town of Queen Creek. Concast executed a Conditional Waiver and Release on Final Payment dated November 3, 2009, which contained the following avowal to the Town of Queen Creek: The undersigned warrants that he either has already paid or will use the monies he receives from this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers from all work materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

10. On November 3, 2009, Robbie Fox, on behalf of Concast, executed a Contractor’s Affidavit Settlement of Claims for the Queen Creek Project in consideration of receiving payment in the amount of $20,022.41, which contained the following certification by Concast: This is to certify that all lawful claims for materials, rental of equipment, and labor used in connection with the construction of the above, whether by subcontractor or claimant in person, have been duly discharged.

11. Concast’s claim that it disputes some of the accounting for the subject projects and/or workmanship performed by Blade lacks credibility. Concast did not raise any alleged disputes until Blade filed the Complaint with the Registrar. 12. At hearing, Concast presented evidence that it would pay a portion of the outstanding debt with Blade, subject to the condition that Blade first present proof to Concast that Blade had General Liability and Workers’ Compensation in effect during the time that Blade performed work on the subject projects. Concast failed to present any credible evidence to support the notion that Concast’s payment to Blade for the subject projects was subject to the condition precedent to present proof of such insurance coverage. 13. A review of the Registrar’s official electronic records reveals that Concast’s License No. 223860 is current. Dominic Jones is listed as the qualifying party and corporate officer for Concast under that license. Robert Fox is listed as a corporate officer. License No. 223860 has three open complaints and three resolved/settled/withdrawn complaints. 14. The Registrar’s records further reveal that Concast’s License No. 201875 is current. Dominic Jones is listed as the qualifying party and corporate officer under that license. Robert Fox is listed as Concast’s corporate officer. License No. 201875 has two open complaints and three resolved/settled/withdrawn complaints.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Concast and the subject matter in these consolidated matters. 2. Pursuant to A.A.C. R2-19-119(B), Blade has the burden of proof in these matters. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Concast, as the holder of License No. 223860 and License No. 201875, violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDERS Case No. 10-2088 Concast’s License No. 223860 shall be suspended on the effective date of the Order entered in Case No. 10-2088 until Concast presents written proof to the Registrar that Concast has paid the total outstanding balance of $3,231.80 owed to Blade, and the Registrar approves such proof of payment. If Concast provides the Registrar with proof that Concast has paid Blade the total outstanding balance of $3,231.80 owed to Blade on or before the effective date of the Order entered in Case No. 10-2088, then the above- provided suspension of License No. 223860 shall not take place. In addition to the foregoing license suspension of License No. 223860, if any, Concast’s License No. 223860 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 10-2088 or the date on which the Registrar approves proof of Concast’s proper compliance with the terms of the Order entered in Case No. 10-2088, whichever is later. Case No. 10-2088W Concast’s License No. 201875 shall be suspended on the effective date of the Order entered in Case No. 10-2088W until Concast presents written proof to the Registrar that Concast has paid the total outstanding balance of $3,231.80 owed to Blade, and the Registrar approves such proof of payment. If Concast provides the Registrar with proof that Concast has paid Blade the total outstanding balance of $3,231.80 owed to Blade on or before the effective date of the Order entered in Case No. 10-2088W, then the above-provided suspension of License No. 201875 shall not take place. In addition to the foregoing license suspension of License No. 201875, if any, Concast’s License No. 201875 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 10-2088W or the date on which the Registrar approves proof of Concast’s proper compliance with the terms of the Order entered in Case No. 10-2088W, whichever is later. 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, May 24, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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