ALJDEC decisions subject to certification as final

2012A-295-ROC · Registrar of Contractors · 2012-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 26, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Michael Gary Dowers. D B Smith LLC DBA: Smith Construction Southwest (hereinafter “Smith”) appeared through its authorized representative, David Brent Smith. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT

1. Smith is the holder of License No. KB-2.264602-D issued by the Registrar of Contractors. 2. Complainant performed electrical trenching and asphalt work as a subcontractor for Smith on a commercial project located at 1313 W. St. Mary’s Rd., Tucson, Arizona (“the project”). 3. There was no dispute that Complainant’s trenching and asphalt work was performed pursuant to an oral construction agreement with Smith. 4. When the construction project was completed, Complainant presented its invoice in the sum of $4,565.00 to Smith for the agreed upon trenching and excavation work. Smith declined to pay the invoice and Complainant filed a formal complaint against Smith with the Registrar of Contractors. 5. Robert Genova (“Mr. Genova”) testified that he was an employee of Complainant and that the hours claimed to have been performed by Complainant on the project were true and correct. Mr. Genova testified that there was an unusual amount of hand-digging involved in the trenching and excavation work and that approximately twenty percent of the construction project involved difficult hand-digging work.[1] 6. Carlos Campazano (“Mr. Campazano”) testified that he was an electrician on the project. Mr. Campazano stated that he was present and observed Complainant performing its work at the project. Mr. Campazano stated that the hours shown in Complainant’s invoice[2] appeared to be accurate.[3] 7. Mr. Campazano testified that he heard a portion of the parties’ conversation regarding the asphalt work on the project. Mr. Campazano testified that Complainant’s representative stated that Complainant did not want to do the asphalt work and that the parties discussed equipment rental for the asphalt work.[4] 8. Michael Gary Dowers (“Mr. Dowers”) testified that the parties’ oral construction agreement was for Complainant to excavate and compact an electrical trench for Smith at the project. The parties’ oral agreement was that Respondent would pay Complainant on a time-and-material basis. Complainant charges $90.00 per hour for backhoe use and $35.00 per hour for laborers. Mr. Dowers acknowledged that he did not remember specifically discussing the hourly rates with Smith. Mr. Dowers stated that Complainant’s hourly rates for backhoe operators and laborers are normal for the industry.[5] 9. Mr. Dowers acknowledged that $90.00 per hour for the operation of the backhoe and $35.00 per hour for the laborers resulted in a total charge of $125.00 per hour, rather than the total charge of $135.00 per hour shown on Complainant’s invoice. Mr. Dowers stated that the extra ten dollars per hour was a bookkeeping error.[6] 10. Mr. Dowers acknowledged that Complainant’s invoice in the amount of $4,565.00 should be reduced by a total of $150.00 to correct the bookkeeping error.[7] 11. Mr. Dowers testified that he informed Smith that he charged anywhere between six dollars to eight dollars per square foot for asphalt work, depending upon the depth of the trench to be filled.[8] 12. Mr. Dowers testified that the difference in hours between the timesheets[9] and the invoice was due to Mr. Genova’s failure to include one hour of travel time in his timesheet. Travel time of one hour for Mr. Genova was added on the invoice.[10] 13. David Brent Smith (“Mr. Smith”) testified that the terms of the parties’ oral agreement were that Complainant was to dig the electrical trench for $300.00 plus the cost of backfilling the trench and that the cost of the agreed upon asphalt work was to be $700.00, for a total expected cost of approximately $1,500.00.[11] 14. Mr. Smith testified that he recalled that Complainant actually spent around 4 hours performing trenching work at the construction project, rather than the larger number of hours claimed by Complainant.[12] 15. Mr. Smith testified that he measured the trench and that it was two feet wide and 99 feet long. Mr. Smith stated that two feet wide by 99 feet long equals approximately 200 square feet, not the 270 square feet contained in Complainant’s invoice.[13] 16. Mr. Smith presented an estimate from another excavation company for the same construction project in the amount of $1,670.00.[14] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The credible evidence of record demonstrated a dispute between the parties regarding the terms of the parties’ oral construction agreement and the amount of construction work actually performed by Complainant. This tribunal concludes that Respondent’s position in this dispute was taken in good faith and that the parties are embroiled in a monetary dispute which must be resolved in a civil court of competent jurisdiction. 4. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good-faith dispute regarding such amounts. Until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction, no violation by Respondent of the charged provisions of A.R.S. § 32-1154(A) (11) can be supported. RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, this matter be dismissed. In the event of certification of this 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 the certification.

Done this day, July 12, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 6/26/12 Hearing Record (hereinafter “H.R.”) at 14:38-18:05. [2] See Exhibit No. C-1 (8/31/2011 Invoice). [3] H.R. at 21:49-25:19. [4] H.R. at 25:19-26:51. [5] H.R. at 36:35-38:16. [6] H.R. at 38:40-39:10. [7] H.R. at 44:15-44:36. [8] H.R. at 42:30-43:38. [9] See Exhibit No. C-2 (Employee timesheets). [10] H.R. at 46:10-46:48. [11] H.R. at 47:47-49:16. [12] H.R. at 52:30-53:07. [13] H.R. at 53:00-54:32. [14] See Exhibit R-11 (Service System Comp Estimate).

-----------------------

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