ALJDEC

01F-A0257-ROC · Registrar of Contractors · 2001-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 16, 2001 APPEARANCES: Andrew and Judy Acquistapace on their own behalf; Respondent did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. In May, 2000, Andrew and Judy Acquistapace (“Complainants”) entered into a contract (the “Contract”) with Southwest Wholesale Window Fashions, Inc. (“Respondent”) for the purchase and installation of blinds at their residence in Prescott Valley, Arizona (the Residence”) for $5,063.10. At all times relevant to this matter, Complainants dealt with Don Tufts (“Mr. Tufts”), who acted on behalf of Respondent. 3. Andrew Acquistapace (“Mr. Acquistapace”) testified that subsequent to execution of the Contract, the parties recognized that two windows in the master bathroom were not addressed in the Contract. Mr. Tufts informed Complainants that he had blinds that Complainants could have at his warehouse that could be installed in the master bathroom and that he would include them in the Contract for an additional $45.00. 4. Complainants decided to purchase blinds in the master bathroom for the two windows and paid Respondent the requested $45.00 to include them as part of the Contract. 5. In addition to the above, Complainants paid Respondent the full amount of the Contract price as follows: $500.00 as a down payment at time of execution of the Contract, $2,281.55 paid to Respondent on November 7, 2000, and Complainants paid Respondent the balance owed on the Contract on November 27, 2000. 6. Mr. Acquistapace testified that Respondent never provided nor installed the two blinds for the master bathroom. He further testified that the blinds Respondent installed on the kitchen door leading to the patio, and two doors in the master bedroom were not installed correctly in that they are too narrow and do not completely cover the glass. Thus, Mr. Acquistapace contended and presented supporting evidence showing that by such installation, a privacy issue existed because Complainants did not have a block wall erected around their property. By having narrow blinds, a portion of Complainants’ bedroom was exposed, which was a concern to Complainants. 7. Complainants notified Respondent of the above-mentioned situation and of their privacy concerns. Complainants repeatedly contacted Respondent between November 27, 2000, and December 31, 2000, to have the master bathroom blinds delivered and installed and for Respondent to correct the blinds in the master bedroom and kitchen. Despite such repeated requests, Respondent did not attempt to deliver the master bathroom blinds or attempt to fix the blinds in the above-mentioned areas of the Residence. 8. Russell Jones (“Mr. Jones”), Complainants’ financial adviser, attempted to deal with Mr. Tufts on behalf of Complainants to rectify the situation, without success. 9. In January, 2001, Complainants contacted Hunter Douglas, the manufacturer of the blinds, to discuss the above-mentioned situation. Hunter Douglas instructed Mr. Acquistapace how to measure for blinds. Mr. Acquistapace followed the directions and provided those measurements to Hunter Douglas. 10. Hunter Douglas informed Mr. Acquistapace that, based on Mr. Acquistapace’s measurements for the master bedroom and kitchen door, Respondent had previously provided Hunter Douglas with the wrong measurements for the blinds that were to be installed in those areas. 11. A Hunter Douglas representative visited the Residence and confirmed that the measurements Mr. Acquistapace provided to Hunter Douglas were correct. 12. In February, 2001, Hunter Douglas informed Complainants that Respondent would fax to Complainants confirmation for the replacement of the above-mentioned areas of the Residence within 24 hours. However, Complainants did not receive any communication from Respondent within that time. 13. After Complainants had not heard from Respondent, Complainants arranged for Arizona Window Blind Manufacturing, a licensed contractor, to install the blinds originally contracted for in the master bedroom, kitchen and one window of the master bathroom for a cost of $836.07. It is that sum which Complainants seeks restitution from Respondent at the instant proceeding. 14. Mr. Acquistapace testified that near the end of February, 2001, Mr. Tufts appeared at the Residence and informed Complainants that he had the replacement blinds. Mr. Acquistapace informed Mr. Tufts that he was too late and that the work had already been accomplished by another contractor. 15. Mr. Acquistapace testified that contrary to the written statements of Don Tufts, there was no request made by Respondent to Complainants for the return of the blinds that were installed incorrectly in the master bedroom and kitchen. Further, Mr. Acquistapace testified that those blinds were in his garage, that they serve no useful purpose to him, and that he would have given them to Respondent, if requested to do so. 16. The evidence of record established that Respondent failed to install the blinds at the Residence in a workmanlike manner, that Respondent failed to perform according to the terms of the Contract, that Respondent abandoned the job prior to its completion, and that Respondent failed to install the blinds in accordance with the manufacturer specifications. 17. The testimony of Mr. Acquistapace was corroborated by the testimony of Judy Acquistapace and Mr. Jones. Thus, the testimony of Mr. Acquistapace, as set forth above, is determined to be credible. 18. Respondent failed to present any evidence to refute or rebut the evidence presented by Complainants. 19. The evidence of record established that based on Respondent’s abandonment of the job, Complainants had to hire another contractor to complete the work they originally contracted with Respondent to perform at a cost of $836.07. 20. The weight of the evidence of record established that Complainants are entitled to have a restitution payment made by Respondent in the sum of $836.07. 21. The Registrar of Contractors has a long-standing policy of allowing a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work or an opportunity to make restitution payment to reduce or eliminate disciplinary action being taken against the contractor’s license. Administrative Notice is taken of Respondent’s licensing status with the Registrar of Contractors which shows that on July 3, 2001, Respondents’ Class K-05 license has been revoked. Thus, it would serve no useful purpose of placing any condition in the Order issued in this matter to serve as an incentive for Respondent to make restitution so as to avoid or minimize disciplinary action being taken against Respondent’s license. Consequently, no such condition is recommended. CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S. §32-1154(A)(1), (2), and (7). RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter, Respondent’s Class K-05 license be revoked. Done this day, August 1, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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