ALJDEC

01F-2559-ROC · Registrar of Contractors · 2001-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 22, 2001

APPEARANCES: Complainant appeared on her own behalf; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Margie Walinski brings this action regarding a refund in connection with tile installation work done by Respondent E T D, Inc. dba Elite Tile Design. As noted above, Respondent’s President John Cunnius did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Having considered Complainant’s evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of provisional license suspension. FINDINGS OF FACT 1. Respondent E T D, Inc. dba Elite Tile Design is the holder of a class K-48 dual license (No. 148185) issued by the ROC. That license authorizes Respondent to perform installation and repair of ceramic, plastic, and metal tile in both residential and commercial structures. (See, Arizona Administrative Code (A.A.C.) R4-9-103.) John Cunnius is Respondent’s President and Qualifying Party. “Respondent” hereinafter refers to both the company and Cunnius.

2. In August 2000, Complainant made a verbal agreement with Respondent for Respondent to install tile at her house. Respondent performed the work and progress payments were made throughout the next several months. Complainant is satisfied with the tile installation done by Respondent. 3. In April 2001, Complainant filed a complaint with the ROC, alleging that Respondent owed her money and refuses to pay it. The basis for the complaint is that after the tile work was completed and the payments reconciled, it was discovered that Respondent actually owed Complainant a refund. This was mainly based on some tile that Complainant had directly purchased but was then returned by Respondent, with a credit to be given to Complainant. In March 2001, Respondent signed a document admitting that he owed Complainant $5200.00 (he actually owed $5243.71, but Complainant rounded the amount down). He agreed to make weekly payments until it was paid off. When he didn’t make even one payment, Complainant filed the ROC complaint. 4. At the hearing, Complainant explained the details of the progress payments that she made and how she arrived at $5200.00. The evidence supports her calculation. Furthermore, Complainant testified that Respondent made a cash payment of $1500.00 to her in late June 2001. Therefore, the remaining amount due to her is $3700.00. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met that burden. 2. Respondent has violated A.R.S. § 32-1154(A)(7), doing a wrongful act that substantially harms another, by failing to comply, without legal excuse, with the agreement entered into with Complainant in March 2001. 3. In accordance with the Citation and Complaint issued on May 31, 2001, and A.A.C. R4-9-117, this tribunal has taken administrative notice of and reviewed Respondent’s prior disciplinary record. It shows that Respondent has been licensed in Arizona since August 1999 and has never been disciplined for misconduct. Respondent’s license was suspended September 1, 2001, through October 19, 2001, for failure to renew. Respondent has now renewed the license through August 2003. 4. The appropriate remedy in this matter is to order Respondent to pay Complainant $3700.00 or have its license suspended. A.R.S. § 32- 1156.01 allows a recommendation that a licensee pay restitution to any person who is injured by action of the licensee. RECOMMENDED ORDER IT IS RECOMMENDED that Class K-48 license 148185, held by Respondent E T D, Inc. dba Elite Tile Design be suspended beginning the effective date of the Registrar’s Order until Respondent has paid Complainant $3700.00 in restitution. IT IS FURTHER RECOMMENDED that if Respondent pays the restitution on or before the effective date of the Registrar’s Order, the license suspension shall not take place. Done this 7th day of November 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this 8th day of November 2001, to:

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

By ___________________________ -----------------------

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