ALJDEC decisions subject to certification as final

2010A-308473302-ROC · Registrar of Contractors · 2011-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 29, 2010 APPEARANCES: Calvary Paving and Grading, L.L.C. was represented by its managing member, Jeff McDowell. A L R Construction, Inc. was represented by its president, Mohammad Nejam. 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. Calvary Paving and Grading, L.L.C. (“Complainant”) is the holder of License No. 233572, a Class K-69 contracting license issued by the Registrar of Contractors (“Registrar”). 2. A L R Construction, Inc. (“Respondent”) is the holder of License No. 132561, a Class A contracting license issued by the Registrar. 3. Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $7,416.00 for paving work performed by Complainant for Respondent on a road project (“Iron Avenue Project”) in Mesa, Arizona. The Registrar designated Complainant’s Complaint as Case No. 2010-[number redacted]. 4. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (11). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On February 1, 2010, the parties entered into a verbal agreement for Complainant to provide labor for paving on Respondent’s Iron Avenue Project. Respondent agreed to pay Complainant’s labor on an hourly basis. Respondent was responsible for providing the necessary materials, equipment, and testing. 7. Respondent rented the roller equipment specified by Complainant. 8. Respondent hired Western Technology to perform testing during the paving work. Western Technology performed compaction testing of the paved asphalt while Complainant worked. 9. Complainant performed its scope of work with input from Western Technology personnel. 10. Complainant’s fee for performing its scope of work was $15,865.00. Respondent owes Complainant a balance of $7,416.00 for the Iron Avenue Project. 11. After Complainant completed its scope of work, the City of Mesa imposed financial penalties upon Respondent because the completed asphalt road did not meet the City’s compaction specifications. 12. Respondent contends that it is entitled to withhold the balance of Complainant’s fee due to the road not meeting the City’s compaction specifications. However, that contention is not supported by the evidence of record. 13. Respondent is determined to be responsible for the compaction of the asphalt road, not Complainant. Respondent hired Western Technology to assure that proper compaction was achieved. 14. Aside from the compaction issue, Respondent does not criticize Complainant’s workmanship on the Iron Avenue Project. 15. Respondent has withheld full payment to Complainant without legal justification.

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) (11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 132561 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until the Registrar receives written proof, and accepts such proof, that Respondent has paid Complainant the sum of $7,416.00. If Respondent provides the Registrar with written proof, and the Registrar accepts such proof, that Respondent has paid Complainant the sum of $7,416.00 on or before the effective date of the Order entered in Case No. 2010-[number redacted], then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 132561 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar approves Respondent’s proof of payment to Complainant in the amount of $7,416.00, whichever is later. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $5,000.00, such bond or deposit to be in addition to the required surety bond or cash deposit set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above-provided 24-month period and only if no claims are then pending. 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, January 13, 2011.

/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