ALJDEC

01F-2583-ROC · Registrar of Contractors · 2002-03-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29 and March 15, 2002. APPEARANCES: Cyrus Dishon, president of Dishon Homes, appeared on behalf of Complainant. Ray Hansen appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainant Dishon Homes (hereinafter Complainant) alleges that Respondent Security Blanket (hereinafter Respondent) violated A.R.S. §32-1154(A)(1) (abandonment of contract without legal excuse) and A.R.S. §32-1154(A)(7) (committing a wrongful act that results in substantial harm to another). Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. Respondent has at all times material to this case held an electrical contractor’s license, Class D-12. Complainant is a custom home builder. 2. In November, 2000, Complainant entered into a contract with Respondent whereby Respondent agreed to pre-wire and trim out certain low voltage fixtures in one of Complainant’s custom homes. The written evidence of the agreement, an invoice from Respondent to Complainant dated November 27, 2000, lists the cost of pre-wiring the stereo system, central vacuum system, the television cable, the “CAT 5” phone wiring and the alarm system. The total price to be paid for the pre-wire was $2,000.00. It also appears from the testimony of the parties as well as the invoice that Respondent was to be paid an additional $600.00 to complete the trim on the alarm system, stereo system, central vacuum system, the television cable, and the phone wiring. The total amount of the contract was $2,600.00. Of this amount, Complainant paid the $2,000.00 for the pre-wire work. 3. The evidence adduced at the hearing shows that Respondent completed the pre-wire in accordance with the contract. The trim of the alarm system, stereo system, central vacuum system, the television cable, and the phone wiring were never completed. 4. According to Respondent, the problem in this case emanated from the fact that Complainant never had the power hooked up to the house so that the trim on the job could be completed. Respondent maintained that he attempted to get Complainant to turn on the power to the house to no avail. Respondent also maintained that he could not install the alarm pad in the location originally agreed to by the parties because Complainant had installed a cabinet in its place. Respondent further testified that the $2,000.00 price he charged for the pre-wiring and the central vacuum pre- pipe was less than what he usually charged to his other customers. 5. According to Complainant, Respondent simply stopped any further work on the job once the pre-wire was completed. Complainant indicated that he repeatedly called Respondent after the pre-wire phase was completed to get him to come back to the job, but could get no response out of Respondent. Complainant hypothesized that Respondent did not return because Respondent would not make any money on the trim portion of the work. Complainant also presented the testimony of Glenn Steinman, a low voltage electrical contractor, who testified that it was not necessary to have the electricity turned on to the home in order to complete the trim work. 6. Complainant eventually filed a complaint with the Registrar of Contractors in April, 2001. The complaint alleges that Respondent was overpaid and that Respondent would not come back and finish the job. The Registrar assigned Inspector Bud Combs to investigate the complaint. After conducting a job site inspection, inspector Combs concluded that the complaint was unfounded. He found that the pre-wire had been accomplished in a workmanlike manner and he further found that the Respondent’s precondition that the electricity be on to the house before completion of the trim was not unreasonable. 7. The weight of the evidence establishes that at the time of the job site inspection, while in the presence of the inspector, the parties agreed to a resolution whereby the Complainant would have the electricity to the home turned on and Respondent would then come in and finish the trim. Apparently, however, the day after the job site inspection, Complainant hired Mr. Steinman’s company to come in and complete installation of the trim. CONCLUSIONS OF LAW 1. 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). 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. A.R.S. § 32-1154(A) provides in pertinent part: 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: (1). Abandonment of a contract or refusal to perform after submitting a bid 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. * * * 3. The undersigned finds that both Complainant and Respondent are credible in their testimony. Here, Respondent testified that the problem with coming back to complete the trim portion revolved around the Complainant’s failure to have the electricity turned on for the home. This evidence is corroborated by the testimony of the Registrar’s inspector who indicated that the parties had reached an agreement on the day of the job site inspection for Complainant to turn on the power to the home so that the trim work could be completed. Because the evidence presented by each party is equal, Complainant has failed to convince the trier of fact by a preponderance of the evidence that Respondent violated either A.R.S. §32- 1154(A)(1) or A.R.S. §32-1154(A)(7). RECOMMENDED DECISION Based on the foregoing, it is recommended that the Director of the Registrar of Contractor’s dismiss the citation and complaint in this matter based on Complainant’s failure to demonstrate the alleged violations by a preponderance of the evidence. Done this day, March 29, 2002 ______________________________________ Gregory L. Hanchett Administrative Law Judge Original transmitted by mail this ____ day of ____________, 2002, 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