ALJDEC

99F-M1405-ROC · Registrar of Contractors · 1999-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 1999 APPEARANCES: The Complainant Frank Teixeira appeared personally. Neither Respondent’s attorney of record nor an authorized employee appeared to represent the Respondent. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The commencement of the scheduled hearing was delayed fifteen minutes to allow for the late arrival of Respondent’s attorney of record or an authorized representative. The hearing was then convened. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. A review of the records of the Office of Administrative Hearings and Registrar of Contractors reveals that the Notice of the Hearing was sent to the parties by the Registrar at the following addresses:

Dave’s Construction Services Inc. P.O. Box 20298 Mesa, Arizona 85277-0298[1]

Dave’s Construction Service Inc. 1837 N. Rosemont Mesa, Arizona 85205

Frank Teixeira 2825 N. Kashmir Drive Mesa, Arizona 85215

The Notice of Hearing advised the parties that the hearing in this matter would be conducted before the Office of Administrative Hearings on October 18, 1999, at 1:30 p.m. at 1400 West Washington, Suite 101, Phoenix, Arizona, before the undersigned Administrative Law Judge. 2. A further review of the Registrar’s records indicates that a copy of the notice was not mailed to Respondent’s counsel of record by the Registrar. However, the Registrar’s records do indicate that the signed return receipt was received by the Registrar indicating that Respondent received the Notice of Hearing on August 26, 1999. Respondent is found to have received proper notice of the hearing. 3. Complainant is the owner/builder of a custom home in northeastern Mesa, Arizona. 4. A neighbor of Complainant’s recommended Respondent to him to do backfill work at his home. 5. After being contacted by Complainant, Respondent’s employee named Scott went to the jobsite to submit a quote. Scott verbally quoted Complainant the contract price of $4,500.00 for the following items: backfill material; loader; water truck; two laborers; and a Bobcat. Scott estimated the time to perform the scope of work at two 10 hour days. 6. Scott subsequently returned to Complainant’s jobsite to finalize negotiations. He and Complainant agreed to Respondent backfilling the front of the house for the sum of $4,500.00. The parties also agreed that Respondent would later backfill the sides and rear areas of the property for a total project cap of $6,000.00 for all work performed by Respondent. The backfill areas were to be landscape ready. 7. The agreement between Scott and Complainant was an oral contract rather than a written contract. 8. The totality of the evidence of record supports a finding that Scott had the authority to contractually bind Respondent for the work to be performed on this project. 9. Respondent did backfill the foundation and front yard of Complainant’s property. It has not backfilled the side or rear yards. 10. On or about June 19, 1998, Respondent submitted an invoice to Complainant in the total amount of $5,940.83 covering the following items:

a) hauling 73 truck loads of import fill material b) backfill stem walls c) 773 Bobcat d) Ford water truck e) 936 Cat Loader f) Mesa City and Maricopa County tax

11. After being presented with the invoice, Complainant disputed the amount of the invoice. He and Scott discussed the amount of the invoice and the scope of work. Complainant then agreed to pay, and did pay, the sum of $5,700.00 to Respondent in exchange for Respondent agreeing to perform the following scope of work, which Scott set forth in his handwriting on the invoice and then signed:

a) “(f)inish moving dirt in backyard to side yards as told in original deal (approximately 30 yards)” b) “provide general grade with Gannon after as left out on original” c) “any dirt needed will be optional”

There is no indication on the modified invoice that any additional costs, except for dirt, would be charged to Complainant in addition to the amount of $5,700.00 paid to Respondent. 12. Respondent has refused to perform the scope of work included in the invoice by its employee Scott, as described in Finding of Fact No. 11 above, unless Complainant pays Respondent for such work on a time and material basis. 13. The evidence of record does not support Respondent’s claim that the agreement with Complainant was a time and material contract versus a fixed price contract. 14. Respondent has committed a wrongful act by failing to fulfill the accord between the parties providing for Respondent’s performance of the work set forth in the handwritten notation by its employee Scott on the invoice in consideration of Complainant’s payment to Respondent in the sum of $5,700.00, which is found to be the total sum to be paid for the entire scope of work set forth in the invoice. Respondent’s wrongful act is found to have caused substantial injury to Complainant.

CONCLUSIONS OF LAW

1. Without condoning the failure of the Registrar of Contractors to include Respondent’s attorney of record in the mailing of the Notice of Hearing, Respondent did receive proper notice of the hearing, as evidenced by a signed return receipt for the notice sent to Respondent’s address of record with the Registrar, as required by A.R.S. §41-1092.05(D). 2. The evidence of record is adequate to established that Respondent has violated the provisions of A.R.S. §32-1154(A)(7). … … … RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this matter that Respondent’s Class C-02 license be suspended until the Registrar of Contractors receives written proof that the items set forth in Finding of Fact No. 11 above have been appropriately completed by Respondent. It is further recommended that if Respondent properly accomplishes the above described corrective work on or before the effective date of the entered Order in this matter, then the above-provided license suspension shall not take place and the Citation and Complaint in this matter shall be closed. It is further recommended, in addition to the above-provided disciplinary penalty, if any, that Respondent be admonish to conform its business practices to comply with the requirements of A.R.S. §32-1158 (A), which requires, among other things, that any contract in an amount of more than $750.00 and less than $150,000.00 between a contractor and the owner of a property to be improved shall be in writing, rather than an oral agreement.

Done this day, November 1, 1999

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007 By ___________________________ ----------------------- [1] Sent by Certified U.S. Mail, Return Receipt Requested, Article No. Z331142492

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