ALJDEC decisions subject to certification as final

2011A-4615-ROC · Registrar of Contractors · 2012-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by its Managing Member and Qualifying Party Randy Sullivan.

WITNESSES: Ted Gerold, ROC Inspector Charles Colldock Randy Sullivan

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that Respondent did not build a road according to specifications that Complainant verbally gave to Respondent. Respondent denies that Complainant gave him the specifications before the road was built. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of a license C-13.178564-R, a specialty residential contractor’s license issued by the Registrar of Contractors (“ROC”) that authorizes Respondent to perform asphalt paving for residential properties. Randy Sullivan is Respondent’s Qualifying Party. 2. In July 2011, Complainant hired Respondent to pour and spread gravel on a road that runs on a rural parcel of property owned by Complainant. The road is in an undeveloped wilderness area that curves up a hill and has switchbacks and ledges along one edge. The parties had entered into agreements for similar work before. The agreement for the gravel work was made verbally and was never reduced to writing.[1] Also, there is no prior or contemporaneous documentation that would shed light on the terms of the verbal agreement. The only evidence as to the terms of the agreement is the testimony of Complainant and Randy Sullivan, the parties to the agreement. 3. Complainant testified that he directed Randy Sullivan, over the telephone on the morning that the work was to begin, and before the work actually began, to pour the gravel (via dump truck) in the middle of the existing non-paved roadway and spread it to the sides of the roadway so that there was a crown in the center of the roadway. He believes that this was a specified term of the verbal agreement. Randy Sullivan testified that Complainant did not make the specification. He testified that he spread the gravel out flat on the existing roadway in keeping with the slope that was already there, which went to one side or the other depending on which side was away from the hillside. He also testified that in some areas of the roadway he would not have been able to spread the gravel as specified by Complainant because there was not enough room to use a dump truck. 5. Complainant filed the complaint in this matter on August 10, 2011, alleging that Respondent had not performed the work in the manner that Complainant had specified, that Respondent had used more machines than were agreed to, and that Respondent had overcharged him. 6. ROC Inspector Ted Gerold performed an inspection of the road on August 30, 2011, and listened to the statements of each party as to what had happened. Based on that conversation, Inspector Gerold determined that Complainant had verbally specified the manner in which to spread the gravel and that Respondent had not performed the work in that manner. He, therefore, issued a Corrective Work Order (“CWO”) ordering Respondent to do the work in the manner stated by Complainant. He made it clear at the hearing that the CWO was based solely on his determination that Complainant had verbally specified the manner in which the gravel was to be spread. 7. After considering the testimony of both parties to the verbal agreement, the evidence is not clear as to what the terms were, or even if there was a meeting of the minds. Each party has a good faith belief in their understanding of what the agreement entailed, and those understandings are substantially different. Without some type of corroborating evidence, this tribunal cannot make a determination as to what the specifications of any agreement were. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(3) by way of ROC Rule R4-9-108, and (A)(23). Subsection (A)(2) requires contractors to build according to plans, specifications, and building codes. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. And subsection (A)(23) requires contractors to comply with CWOs. 3. The evidence does not show by a preponderance that Respondent has violated any of those provisions. Respondent’s position that he is not in breach of the agreement is held in good faith. Therefore, no violation has been shown. 4. This tribunal makes no conclusion about the merits of either party’s position with regard to the verbal agreement, only that Respondent holds its position in good faith. The contractual dispute between the parties is better suited for resolution in the civil court system. 5. There being no violations, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-4615 against Respondent Sullivan Paving, LLC be dismissed.

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 5, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] In the file, there is a post-work accounting of the costs of the work that was created by Respondent. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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