ALJDEC

00F-M1523-ROC · Registrar of Contractors · 2000-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2000. APPEARANCES: COMPLAINANT: Cliff Schultz, on his own behalf. RESPONDENT: by Jason Sherman, Esq., with Robert Hoffman.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ The hearing in this matter was held to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Homeowner and Complainant Cliff Schultz (Schultz) resides at 15806 South 31st Way, in Phoenix, Arizona. 2. On October 30, 1998, the Arizona Registrar of Contractors (Registrar) issued Contractor’s License No. 139983, Class K-05, to Respondent Solar Control Systems SCS Inc. and Solar Control Systems SCS L.P., a partnership dba Arizona’s Best Window Films (Arizona’s Best Window Films). For purposes of this proceeding, Robert Hoffman appeared and testified as the company’s authorized representative. 3. At issue herein is the COMPLAINT filed by Complainant Schultz with the Registrar of Contractors on April 18, 2000, alleging that Respondent contractor had failed to fulfill terms of an agreement to install window film in the residence; had abandoned or refused to perform the contract; and had used false, misleading or deceptive advertising. Complainant provided a written explanation of events in support of his allegations. 4. By correspondence dated June 12, 2000, and filed that same date with the Registrar, Respondent’s representative Hoffman responded to deny the allegations of the complaint, with his own chronology of circumstances and events provided in support of his denial. 5. When the matter was not administratively resolved, the Registrar then issued CITATION AND COMPLAINT in Case No. M00-1523 to Respondent on June 22, 2000, charging the contractor with possible violations of A.R.S. § 32-1154.A.1, .7, and .16. 6. Respondent timely filed his written ANSWER to the CITATION AND COMPLAINT on July 6, 2000, incorporating his correspondence of June 12, 2000 to deny the violations charged. 7. On August 4, 2000, Complainant filed an additional statement (dated July 31, 2000) with the Registrar. 8. Based on administrative notice of the documents referenced in Findings 3 through 7, and consideration of the testimony of Schultz and Hoffman at hearing, the undersigned finds that: A. In the fall of 1999, Complainant Schultz was interested in having certain of the windows in his residence covered with film to reduce transmission of the sun’s light and heat into the home. B. To that end, in about late August, 1999, Schultz contacted Respondent, whose salesman, Goldman, provided a quote of $550.00 to install “3-M” brand window film on 7 windows. C. Soon thereafter, Schultz solicited a written bid of $1500.00 on September 13, 1999, from another company for the installation of an unspecified brand of window film, but he did not accept that bid or otherwise contract with that company. Presumably, that bid contemplated an installation more extensive than the 7 windows estimated by Respondent’s Goldman. D. In his capacity as Respondent’s manager, and apparently because Goldman had resigned from the company, Hoffman followed up on Goldman’s bid and contacted Schultz, who indicated an interest in having more than 7 windows filmed, but with a cheaper brand of film, rather than 3- M. Schultz asserts that Hoffman agreed to install film for a price 10% lower than the $1500.00 bid, or for $1350.00. These discussions were apparently not reduced to writing. E. Nonetheless, the parties reached sufficient meeting of the minds for Hoffman to subcontract with another company to install (done by Patrick Burke) a cheaper film (Hanita “Cold Steel”) which Arizona’s Best Window Films did not carry. Burke’s installation efforts did not include all the windows which Schultz believed were part of the agreement, and neither party could confirm with any specificity when this work was done, but Hoffman himself arranged to and accomplished additional installation of film in about mid-December, 1999, for which Schultz then paid $1296.51 for the total work done by Burke and Hoffman to that date. F. However, at that time in December Hoffman also did not complete the filming of two additional windows Schultz believed had been agreed upon. According to Schultz, these windows, on the east and west sides of the living/dining rooms, and each about 6’ by 8’, comprised the work remaining to be done to complete the $1350.00 contract, and for which the remaining $53.49 would then be paid. G. Schultz stated that Hoffman left in mid-December with the explanation he had run out of materials, but also with the promise to call sometime after mid-January, 2000 (when Schultz was to return from out-of- state) to schedule completion of the two remaining windows. H. Hoffman stated he left the job in December because Schultz could not make up his mind as to the particular windows to be filmed, or which film to use; Hoffman also stated that he had agreed to call Schultz in mid-January only to discuss how or whether to proceed, but that he had made no promise to do any further work, for any price. I. At some point after Hoffman’s work, which required correction of one window, Hoffman arranged for David Ewing to do the repair, which Ewing did. J. To date, no further work has been done (or payment made) to film the two windows Schultz asserts were part of the unwritten agreement; nor has Schultz been provided the manufacturer’s warranty information he requested relative to either the Hanita or the 3-M film installed. K. Hoffman contends that the terms of the unwritten contract are too uncertain to perform, given Schultz’s frequent changes of mind as to which windows were to be filmed, and which brand of film was to be used. Hoffman further contends that only his subcontractor could provide Schultz the warranty information for the Hanita film, since Arizona’s Best Window Films does not carry that line, and therefore cannot provide that manufacturer’s warranty. Relative to the 3-M film, Hoffman contends that Respondent has provided the information necessary to that manufacturer for it to issue the warranty, but that when the manufacturer does so is beyond the control of Arizona’s Best Window Films.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154.A.1, A.7, and A.16. Those statutory sections require that a holder of a license or a person listed on a license shall not commit the following: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 16. False, misleading or deceptive advertising whereby any member of the public may be misled and injured.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant Schultz must demonstrate by a preponderance of the evidence that Respondent license holder violated any one of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994. 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 (Rev. 6th ed. 1990). 3. On the record made, the undersigned finds and concludes that Complainant and Respondent reached sufficient meeting of the minds to enter into a valid and enforceable contract, albeit unwritten, in which Respondent was to install window film on certain, but not all, windows of Complainant’s residence for the contract amount of $1350.00. To the extent ambiguities may exist relative to any more specific terms of the contract, such were properly the responsibility of Respondent to reduce to writing, as Respondent’s representative conceded was its usual business practice. This is so, notwithstanding Complainant’s changes of mind, and the real- world day-to-day exigencies facing Respondent to procure and perform its work. 4. It is further found that a preponderance of the evidence demonstrates that all agreed-upon work under the contract has been performed, but for the two windows referenced in Finding No. 8.F above, which Respondent has failed to complete, and that $1296.51 of the $1350.00 contract price has been paid, such that upon completion of the two remaining windows, a balance of $53.49 will be due. 5. It is further concluded that by failing to complete the two remaining windows Respondent thereby abandoned, or refused to perform, the verbal contract, and that such was without sufficient legal excuse - despite Complainant’s vacillations - such that a violation of A.R.S. § 32- 1154.A.1 has been proven. 6. Additionally, it is determined that Respondent failed to supply the manufacturer’s warranty on either the Hanita or 3-M products despite Complainant’s reasonable request for such information as an adjunct to the contract. While Respondent may not have ready access to warranty information on product lines it does not commonly stock, its willingness to subcontract to have such a product installed carries with it the responsibility to provide the consumer the manufacturer’s warranty for that product, or to affirmatively act to have it provided. Respondent’s failure to provide the manufacturer’s warranty on either of the products it sold to Complainant is deemed to be a wrongful act, and therefore a violation of A.R.S. § 32-1154.A.7. 7. Finally, on the record made, it must be further concluded that the preponderance of the evidence does not demonstrate false, misleading, or deceptive advertising sufficient to prove a violation of A.R.S. § 32- 1154.A.16.

RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter (thirty- five days after issuance), Respondent’s Class K-05 license be suspended until the Registrar receives proof that Respondent has accomplished, upon reasonable access, completion of the contract, and supply of all appropriate warranties. // // // //

IT IS FURTHER RECOMMENDED that if Respondent accomplishes both completion of the contract and supply of warranties on or before the effective date of the Order, then no active license suspension shall be imposed, and the CITATION AND COMPLAINT in Case No. M00-1523 shall be closed. Done this day, October 12, 2000.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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