ALJDEC decisions subject to certification as final

2011A-3393-ROC · Registrar of Contractors · 2012-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CONSOLIDATED HEARING: December 21, 2011 APPEARANCES: Doc Construction, Inc. was represented by its authorized representative, David Chamberlin. Freddie, Inc. was represented by its authorized representative, Charles Fratantoni. 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 Orders: FINDINGS OF FACT 1. Doc Construction, Inc. (“DOC”) is the holder of License No. K- 61.161165-D issued by the Registrar of Contractors (“Registrar”) 2. Freddie, Inc. (“Freddie”) is the holder of License No. B.106986-R issued by the Registrar. 3. Unique Custom Builders (“Unique”) is a design and consulting business owned by Freddie’s principal, Charles Fratantoni. Unique does not have a contracting license issued by the Registrar. 4. On June 8, 2011, DOC filed a written Complaint with the Registrar alleging non-payment in the amount of $11,257.24 by Unique on a project located at 3801 North 30th Street, Phoenix, Arizona. DOC further alleged that Unique contracted without a license. The Registrar designated the Complaint as Case No. 2011-3393. 5. The Registrar issued a Citation and Complaint in Case No. 2011-3393 charging Freddie, not Unique, with violating the provisions of A.R.S. § 32-1154(A) (11) and (15). 6. On June 23, 2011, Freddie filed a written Complaint with the Registrar alleging that DOC abandoned the subject project. The Registrar designated the Complaint as Case No. 2011-3638. 7. The Registrar issued a Citation and Complaint in Case No. 2011-3638 charging DOC with violating the provisions of A.R.S. § 32-1154(A) (1) and (2). 8. The Registrar forwarded Case Nos. 2011-3393 and 2011-3638 to the Office of Administrative Hearings, an independent agency, for a consolidated evidentiary hearing. 9. Unique executed a written “Contractor – Subcontractor Agreement” dated December 16, 2010, prepared by DOC. Unique was listed as the contractor and DOC was the subcontractor. The scope of work was a remodel and addition to the subject project for a contract price of $13,800.00. 10. Unique executed a second written “Contractor – Subcontractor Agreement” dated January 1, 2011, prepared by DOC. Unique was listed as the contractor and DOC was the subcontractor. The scope of work was a great room roof rebuild to the subject project for a contract price of $4,400.00. 11. Unique executed a third written “Contractor – Subcontractor Agreement” dated January 26, 2011, prepared by DOC. Unique was listed as the contractor and DOC was the subcontractor. The scope of work was demolition of the great room’s roof to the subject project for a contract price of $1,325.00. 12. Unique executed a fourth written “Contractor – Subcontractor Agreement” dated March 3, 2011, prepared by DOC. Unique was listed as the contractor and DOC was the subcontractor. The scope of work was the demolition of a block wall to the subject project for a contract price of $1,000.00. 13. The aggregate contract price of the four agreements was $20,525.00. 14. DOC was paid by both Freddie and Unique during the course of the project. DOC applied payments to Freddie’s outstanding balances owed to DOC. 15. DOC paid to have lumber delivered to the project on December 16 and 17, 2010, February 21, 2011, and April 1, 2011. 16. On Monday, March 28, 2011, concrete was poured on the project. 17. On Wednesday, March 30, 2011, measurements were taken by L.J. Walker of Appliance Components, who was hired by DOC to manufacture the trusses. 18. The trusses were completed by Friday, April 1, 2011. However, they could not be delivered until Monday, April 4, 2011. Despite having separated his shoulder on March 30, 2011, Mr. Chamberlin and Mr. Walker delivered the trusses to the jobsite on April 1, 2011. 19. On Saturday, April 2, 2011, DOC performed work on the project. 20. On Monday, April 4, 2011, Freddie’s qualifying party and officer, Charles Fratantoni, called Mr. Chamberlin to schedule DOC for the project. Mr. Chamberlin stated that DOC workers could not be on the project until Thursday, April 7, 2011. Mr. Fratantoni stated that if DOC did not return to the project sooner, Freddie would hire a new subcontractor. 21. On Wednesday, April 6, 2011, Mr. Chamberlin went to the project and discovered Peter M. Calhoun of Calhoun Construction Company, Inc. (“Calhoun”) performing DOC’s scope of work using materials paid for by DOC. Calhoun is the holder of License No. 163893 issued by the Registrar. 22. Freddie had hired Calhoun to replace DOC. Freddie did not advise DOC in writing that it was terminated, as required by the agreements for the project. 23. DOC was paid the total sum of $13,250.00 for the subject project with the following checks: Unique’s check number 2152 dated January 7, 2011, in the amount of $4,500.00; Freddie’s check number 1192 dated February 24, 2011, in the amount of $3,750.00; Unique’s check number 2186 dated March 24, 2011, in the amount of $3,000.00; and Unique’s check number 2187 dated March 22, 2011, in the amount of $2,000.00.[1]

24. Freddie and Unique paid Calhoun a total sum of $13,200.00 for work on the subject project.[2] 25. The total amount paid by Freddie and Unique on the subject project to DOC and Calhoun is at least $26,450.00.[3] It is unclear from the evidence if the difference between that amount and the original total contract price of $20,525.00 was the result of Calhoun’s performing remedial work to DOC’s workmanship and/or change orders in the original scope of work. 26. The evidence of record does not support DOC’s allegation that Freddie owes DOC the sum of $11,257.24. Further, the evidence of record failed to establish what amount, if any, is due and owing to DOC. 27. The weight of credible evidence established that Freddie contracted using Unique’s name and bank account on the subject project. Freddie also uses Unique’s name on its signage. 28. Freddie failed to establish that DOC abandoned the project. Freddie terminated DOC after DOC was off the project for several days. The evidence established that DOC intended to return to the project. 29. Freddie failed to establish that DOC deviated from plans or specifications or failed to comply with local building code requirements, as charged in the Citation and Complaint. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over DOC, Freddie, and the subject matter in these consolidated matters. Case No. 2011-3393 2. Pursuant to A.A.C. R2-19-119(B), DOC has the burden of proof in Case No. 2011-3393. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. DOC failed to sustain its burden of proving that Freddie violated the provisions of A.R.S. § 32-1154(A) (11) because DOC failed to establish what amount, if any, Freddie owes to DOC for its work on the subject project. The above Findings of Fact support this conclusion. 4. Freddie violated the provisions of A.R.S. § 32-1154(A) (15) by contracting using Unique’s name and bank account on the subject project, as charged in the Citation and Complaint issued by the Registrar. Case No. 2011-3638 5. Pursuant to A.A.C. R2-19-119(B), Freddie has the burden of proof in Case No. 2011-3638. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 6. The evidence of record failed to establish that DOC abandoned the subject project in violation of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. The evidence established that Freddie terminated DOC from the project. 7. The evidence of record failed to establish that DOC deviated from plans or specifications or failed to comply with local building code requirements in violation of A.R.S. § 32-1154(A) (2).

RECOMMENDED ORDERS Case No. 2011-3393 Freddie’s License No. 106986 shall be suspended on the effective date of the Order entered in Case No. 2011-3393 until Freddie provides the Registrar with written proof that Freddie is fully compliant with the provisions of A.R.S. § 32-1154(A) (15) by having ceased doing business in the name of Unique and using Unique’s bank account when contracting. If Freddie provides the Registrar with written proof that Freddie has become fully compliant with the provisions of A.R.S. § 32-1154(A) (15) as above-provided on or before the effective date of the Order entered in Case No. 2011-3393, and the Registrar approves proof of such compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Freddie’s License No. 106986 shall be placed on probation for a period of 180 days commencing on the effective date of the Order entered in Case No. 2011-3393 or the date that the Registrar approves Freddie’s proof of its having become fully compliant with the provisions of A.R.S. § 32-1154(A) (15), whichever is later. Case No. 2011-3638 The Citation and Complaint in Case No. 2011-3638 shall be dismissed on the effective date of the Order entered in the 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, January 11, 2012. /s/ Brian Brendan Tully Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] There is a Freddie check number 1143 dated November 22, 2010, in the amount of $4,300.00. That check’s memo indicates that it was a partial payment to DOC for the subject project and payment for another project. However, the parties had not yet contracted for work to be performed on the subject project. The evidence is unclear as to what portion of those funds should be applied to the subject project. Therefore, this amount is not included in the total sum paid to DOC.

[2] There is also a Freddie check number 1292 dated June 24, 2011 in the amount of $3,000.00. The memo of the check indicates that it is for the subject project and other unnamed projects. The evidence is unclear as to what portion of those funds should be applied to the subject project. Therefore, this amount is not included in the total sum paid to Freddie.

[3] $13,250.00 + $13,200.00. See Findings of Fact 23 and 24, supra.

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