ALJDEC decisions subject to certification as final

2010A-308477349-ROC · Registrar of Contractors · 2011-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 23, 2011 APPEARANCES: Construction Management Associates, Inc. was represented by its authorized representative, Patrick Hurley. Todd’s Excavating, Inc. was represented by its authorized representative, Bill Todd. 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. Construction Management Associates, Inc. (“Complainant”) is the holder of License No. 197867, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Todd’s Excavating, Inc. (“Respondent”) is the holder of License No. 165222, a Class A-05 contracting license issued by the Registrar. 3. Complainant was the general contractor for a project located at 5229 Rudd Tank Road, Flagstaff, Arizona (“Project”). 4. Complainant entered into a written Subcontract Agreement dated July 20, 2009, with Respondent. 5. Respondent’s scope of work included excavation, utility work, and the installation of cisterns and rain water system. 6. On November 23, 2010, Complainant filed a written Complaint with the Registrar alleging that Respondent failed to pay one-half of the cost for remedial work as agreed upon prior to that work being performed by another subcontractor. 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) (3), namely A.A.C. R4-9-108, (11), and (17). 8. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. Respondent backfilled the Project before the plumber completed its work to connect internal piping which would allow the buried tanks to be filled. There is a dispute between the parties about whether Respondent was directed to perform the backfilling by Complainant. However, it is undisputed that Respondent performed such work. 10. Later, it was noted that the ground around the Project had sunk. Complainant then contacted Respondent, whose qualifying party, Bill Todd, verbally agreed to split the cost to have remedial work performed by another licensed excavating subcontractor, Lowel Pratt Excavation, Inc. (“Lowell”). Respondent did not place any conditions on its agreement to share the expenses to remediate. 11. Based upon Respondent’s avowal to share the cost of the remedial work in lieu of Respondent performing the work, Complainant subcontracted with Lowell to perform the necessary remedial work. 12. Lowell charged Complainant the sum of $1,906.75 for its remedial work. 13. Respondent has failed to pay Complainant the sum of $953.37, which is one-half of the repair costs. 14. The evidence of record established that Respondent is responsible for paying the sum of $953.37 to Complainant pursuant to the parties’ agreement for financing the remedial repairs. 15. The evidence of record did not establish that Respondent contracted beyond the scope of its license. The issue was not addressed at the hearing. 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 by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant sustained its burden of establishing that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. The basis for this conclusion is Respondent’s deficient backfilling of the Project that required remedial work performed by Lowell. 4. Complainant sustained its burden of establishing that Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. Respondent is determined to owe Complainant the sum of $953.37 pursuant to the parties’ agreement. 5. Complainant failed to sustain its burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as charged in the Citation and Complaint issued by the Registrar. The evidence of record does not establish by a preponderance of the evidence that Respondent contracted outside the scope of its license. RECOMMENDED ORDER Respondent’s License No. 165222 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides the Registrar with written proof, and the Registrar approves such proof, that Respondent has paid Complainant the sum of $953.37 pursuant to the parties’ agreement. If Respondent provides the Registrar with written proof that Respondent has paid Complainant the sum of $953.37 pursuant to the parties’ agreement on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves such proof of payment, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s contracting license shall be placed on probation for a period of 60 days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar approves proof that Respondent has paid the sum of $953.37 to Complainant, 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, July 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