ALJDEC decisions subject to certification as final

2015A-4297-ROC · Registrar of Contractors · 2016-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2016 APPEARANCES: Ed Deedler, Estimator, appeared on behalf of Complainant Phoenix Scaffolding and Equipment Inc. Martin Fairbank, Qualifying Party and Member, and JD Wright appeared on behalf of Respondent Fairbank’s Contracting and Development LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Fairbank’s Contracting and Development LLC (Respondent) is the holder of License No. 117200 and 276940 issued by the Registrar of Contractors (Registrar). 2. On or about October 13, 2015, Phoenix Scaffolding and Equipment Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $3,698.79 for 38 days of additional rental of shoring equipment on a jobsite at 7760 South Priest Drive, Tempe, Arizona. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). 4. Mr. Deedler testified that Complainant’s contract with Respondent provided a base price for erecting and dismantling/removing the shoring and 30 days of rental of shoring equipment for a total contract price of $7,680.00. The contract provides that “[t]hirty (30) day rental of shoring is included in contract price with additional days pro-rated at $48/day.” Mr. Deedler stated that the equipment was on the project for a total of 68 days, or 38 days beyond the original rental period. At a rate of $48.00 per day, this resulted in additional rental fees of $1824.00 plus $270.91 in tax. After change orders and the additional rental fees, less the amount paid on the contract, Mr. Deedler stated that the total due to Complainant was $3,315.39. 5. Mr. Fairbank did not deny that the shoring equipment was on the project for a total of 68 days, but stated that no change order for the additional rental fees was executed. Mr. Fairbank testified that as the job came to a close Respondent met with each of the subcontractors to finalize the payment to ensure that everyone was paid properly. Mr. Fairbank asserted that during such a meeting with Complainant, the parties agreed that the final amount due was $1,220.48 and that Respondent cut a check for Complainant for that amount that is still waiting for Complainant to accept. Mr. Fairbank stated that Respondent is a construction manager that just passes on costs to the customer. Mr. Fairbank alleged that because Complainant did not notify Respondent of the additional rental charges until after the project had been closed out, Respondent had no way to pass the costs on to the customer. 6. Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due. 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. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [f]ailure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

4. The evidence established that Respondent had the shoring equipment on the jobsite for a total of 68 days. Pursuant to the terms of the contract, Respondent was obligated to pay rental fees of $48.00 per day beyond the original rental period of 30 days. Nothing in the record established that a change order for additional rental fees needed to be executed when those terms were included in the original contract. 5. The evidence established that Respondent owed a total of $3,315.39 for the rental of the shoring equipment. 6. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. 7. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $3,315.39 for materials rendered in connection with Respondent’s contracting business. 8. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(10), grounds exist to impose discipline against Respondent’s license RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend Fairbank’s Contracting Inc.’s License Nos: 117200 and 276940 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3,315.39 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,315.39 in certified funds, the Registrar may close the Complaint in Case No. 2015- 4297. 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, February 23, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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