ALJDEC decisions subject to certification as final

2010A-308476890-ROC · Registrar of Contractors · 2011-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 18, 2011 APPEARANCES: Glenda Lynn Down, doing business as Up Set Concrete, was represented by her attorney, Gregory E. Hinkel, Esq. D C S Contracting, Inc. was represented by its attorney, William R. Mettler, Esq. 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. Glenda Lynn Down, doing business as Up Set Concrete (“Complainant”), is the holder of License No. 122475[2] issued by the Registrar of Contractors (“Registrar”). 2. D C S Contracting, Inc. (“Respondent”) is the holder of License No. 245569 issued by the Registrar. 3. Respondent and the City of Phoenix (“City”) entered into an Agreement dated April 29, 2009 (“Agreement”), for a street improvement project in the area of Southern and 27th Avenue (“Project”). 4. Article IV – FINAL PAYMENT of the Agreement provides, among other things, for the following: “… the [City] agrees to pay the said [Respondent] the amount earned, computed from actual quantities of work performed and accepted or materials furnished at the unit bid price on the Proposal made a part hereof…” 5. Complainant and Respondent entered into a written Subcontract dated May 13, 2009 (“Subcontract”), for catch basin and permanent pipe support on the Project. 6. On November 2, 2010, Complainant filed a written Complaint with the Registrar alleging non-payment by Respondent in the amount of $7,864.00. The Registrar designated the Complaint as Case No. 2010- [number redacted]. 7. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (11). 8. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. The City deleted unit work totaling $7,864.00 on the project after excavation revealed that such work was not needed. Respondent was not paid for such scope of work. 10. The parties’ Subcontract contains the following provision: “Payment will be based on actual field quantities.” 11. Respondent’s Standard Terms and Conditions, which are attached to the Subcontract, contain Article 11. Arbitration of Disputes that reads as follows: 11.1 Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

12. Complainant did not perform the deleted scope of work. Complainant also did not agree to the deletion of such work. 13. The evidence of record established that the parties have a bona fide financial contractual dispute that should be properly resolved by arbitration and/or by a civil court of competent jurisdiction rather than in an administrative disciplinary action before the Registrar. CONCLUSIONS OF LAW 1. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by preponderance of the evidence. A.A.C. R2-19-119(A). 2. Complainant failed to sustain her burden of proving that 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 established that the parties have a bona fide dispute that should be resolved through arbitration and/or through civil litigation. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this matter. 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 9, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The caption has been changed to reflect the licensee’s name as it appears on the license. [2] The Registrar’s official electronic licensing records reveal that Complainant’s license was voluntarily cancelled on December 3, 2010.

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