ALJDEC

99F-1151-ROC · Registrar of Contractors · 1999-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 1999; 2:00 P.M.; Phoenix, Arizona APPEARANCES: Admiral Air: Anthony Joseph Boccasini, President and Qualifying Party Bear Refrigeration Air Conditioning and Heating, Inc.: Pamela M. Mortenson, President ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

These cases were consolidated for hearing. Case No. 99F-1071-ROC (Admiral Air v. Bear Refrigeration Air Conditioning and Heating, Inc.) is a rehearing granted by the Arizona Registrar of Contractors (“Registrar”) on a citation and complaint alleging violations of Arizona Revised Statutes (“A.R.S.”) §§ 32-1154(A)(7) and -(A)(11). Case No. 99F-1151-ROC (Bear Refrigeration Air Conditioning and Heating, Inc. v. Admiral Air) involves a citation and complaint alleging violations of A.R.S. §§ 32-1154(A)(3), namely, Registrar’s Rule R4- 9-108, Ariz. Admin. Code, and 32-1154(A)(7). Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Registrar. FINDINGS OF FACT 1. Admiral Air (“Admiral”) is a business name under which Roadrunner, Inc. is doing business. Roadrunner, Inc. holds License No. 103958, Class L- 39, issued by the Registrar on September 2, 1994. Mr. Anthony Joseph Boccasini is the qualifying party. 2. Bear Refrigeration Air Conditioning and Heating, Inc. (“Bear”) holds License No. 117431, Class L-39, issued by the Registrar on September 16, 1996. Mr. Lawrence Edward Mortenson is the qualifying party. 3. Bear’s License No. 117431, Class L-39, is currently delinquent for nonpayment of fees and is suspended by operation of law. 4. Both Admiral and Bear were at all times relevant here engaged in the contracting business of air conditioning and refrigeration. 5. On or about July 25, 1998, the parties orally agreed that Admiral would provide labor services to Bear and that Admiral’s workmen would be uniformly paid at the rate of $20.00 per hour. Although there was no written agreement to this effect, Admiral’s invoices sent to Bear (and admitted into evidence) specified this hourly wage rate. 6. During August, 1998, Admiral provided labor services to Bear for the projects at John F. Long Elementary School and Santa Maria Middle School.[1] Bear has not paid Admiral for some of these labor services. 7. Copies of Admiral’s relevant invoices were admitted into evidence. These invoices have been carefully reviewed and analyzed. Bear has not paid Admiral the following amounts for labor services provided at these two projects: A. John F. Long Elementary School $5,100.00 B. Santa Maria Middle School 2,720.00 Total $7,820.00. This amount is less than the $8,420.00 total amount Admiral claims Bear owes. Admiral claims $5,100.00 is due and owing for the John F. Long Elementary School, and $3,320.00 is due and owing for the Santa Maria Middle School. The amount of $600.00 (or 30 hours) has been discounted for four workmen on Saturday, April 22, 1998, from 11:00 A.M. to 6:30 P.M. 8. Bear claims that Admiral’s failure to complete work in a professional and workmanlike manner resulted in the following back charges assessed against Bear: A. Redoing the condensate piping for six $4,200.00 systems at John F. Long Elementary School This amount is 35% of $12,000.00 which the general contractor (Sun Eagle) back charged Bear for this and other refrigeration rework. B. Cleanup at Santa Maria Middle School 508.75 Cleanup was done by Achen-Gardner in Building 100 and in Building 300’s bathroom. Three cleanup back charges were made, each in the amount of $169.58 (two for Building 100 and one for Building 300). C. Twelve damaged door frames at John F. Long Elementary School 1,968.00 Total $6,676.75. 9. Admiral did not complete the installation of the condensate lines for the six systems which failed a water test. Admiral installed P-traps after the failures occurred. There is no evidence showing that Admiral’s P- traps were improperly installed. 10. Admiral was never called to do any corrective work, after the work Bear claims Admiral completed, allegedly failed. 11. Admiral did not do any work in Building 100 or in Building 300’s bathroom at the Santa Maria Middle School, the two areas for which Bear was back charged for cleanup work. 12. Admiral’s workers damaged twelve door frames at the John F. Long Elementary School. The workers ran into some of the doors while trying to enter through them with the scissors lifts Bear had provided. The door frames were scratched, dented or gouged. 13. At the hearing, Bear raised the issue that Admiral had charged Bear for materials and supplies which were not accounted for at the projects. Bear, however, did not present any credible evidence substantiating this claim. 14. No corrective work orders were issued in either of these cases. 15. At the hearing, Bear asked Admiral to return three uncashed checks which had “bounced.” Admiral returned these three checks to Bear. CONCLUSIONS OF LAW The issues are whether Bear violated A.R.S. §§ 32-1154(A)(7) and -(A)(11), and whether Admiral violated A.R.S. §§ 32-1154(A)(3), namely, Rule R4-9-108(A), Ariz. Admin. Code, and 32-1154(A)(7). APPLICABLE STATUTES AND RULES A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: *** 3. Violation of any rule adopted by the registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. *** 11. Failure 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.”

Registrar’s Rule R4-9-108(A), Ariz. Admin. Code, states “All work shall be performed in a professional and workmanlike manner.” CONCLUSIONS OF LAW 1. In these disciplinary cases, the complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996), review denied (1997); Troutman v. Valley Nat. Bank of Arizona, 170 Ariz. 513, 826 P.2d 810 (App. 1992). 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). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). 2. Bear violated A.R.S. § 32-1154(A)(11) by failing to pay Admiral for labor services Admiral provided to Bear. 3. Admiral violated A.R.S. § 32-1154(A)(3), namely, Rule R4-9-108(A), Ariz. Admin. Code, by failing to complete certain work “in a professional and workmanlike manner.” Rule R4-9-108(A), Ariz. Admin. Code. The Registrar is charged with determining professional workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.” Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see, J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. § 32-1154(A)(3); Rule R4-9- 108(A), Ariz. Admin. Code. The evidence establishes Admiral failed to perform in a professional and workmanlike manner, specifically, the damage caused to twelve door frames. Rule R4-9-108(A), Ariz. Admin. Code. The evidence regarding the alleged deficient work for which Bear was back charged $4,200.00 is insufficient to support a conclusion that Admiral should be held responsible for this amount. Bear did not present any testimony regarding the specifics or scope of the work which Sun Eagle back charged Bear. Probative evidence must substantiate an allegation or claim. 4. Admiral’s damages to the door frames has been corrected. At this point, the payment of monies will conclude both of these matters. 5. The amount of ($5,852.00) is a reasonable amount for Bear to pay Admiral and dispose of both of these matters. This amount has been calculated as follows: Bear owes Admiral for Labor $7,820.00 Less $1,968.00 for Damaged 1,968.00 Door Frames Total $5,852.00 6. Neither Bear nor Admiral violated A.R.S. § 32-1154(A)(7). The actions and omissions of both Bear and Admiral cannot be considered to have been “wrongful or fraudulent.” A.R.S. § 32-1154(A)(7). 7. The current suspension by operation of law of Bear’s License No. 117431, Class L-39, “shall not deprive the Registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such license.” A.R.S. § 32-1154(C). 8. The Registrar may suspend a contractor’s license “with or without imposition of specific conditions.” A.R.S. § 32-1154(B). RECOMMENDED ORDER It is recommended that the Registrar: 1. Suspend Bear’s License No. 117431, Class L-39, unless and until the Registrar receives, not later than the effective date of the Registrar’s order of suspension, written notification that Bear has paid to Admiral the amount of Five Thousand Eight Hundred Fifty Two Dollars and No Cents ($5,852.00). If Bear timely tenders full payment of this amount to Admiral, the Registrar should close Citation and Complaint No. 99-1071.The payment of this amount will dispose of both of these citations and complaints. 2. Close Citation and Complaint No. 99-1151. SUBMITTED this 23rd day of March, 1999.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order was mailed on March 23, 1999, for distribution to the parties, to:

Michael P. Goldwater Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007-2940

George A. Schade, Jr. ----------------------- [1] Admiral also provided labor for Bear’s projects at four schools in Apache Junction, North High School, and Estrella Mountain Elementary School. Those projects are not involved with these consolidated cases.

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