ALJDEC

01F-F0255-ROC · Registrar of Contractors · 2001-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2001

APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its owner and qualifying party, Mike Hampshire. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to oral agreement, Respondent agreed to accomplish specified remodeling work in Complainant’s home. Complainant alleges that Respondent abandoned the job and these allegations are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant and Respondent live in the same neighborhood, only a few blocks away from each other. b. On or about February 2000, Complainant and Respondent entered into a verbal agreement, wherein Respondent was to provide and install a new interior handrail, supply a specified interior door, supply a new window, supply two (2) new custom storm doors, construct and install new exterior shutters, and complete other specified minor work. c. Although the parties failed to discuss any fixed price for the above-described contract, Complainant paid Respondent a $1,000.00 deposit in February 2000. d. Complainant contends that the oral agreement required Respondent to complete the work on or about the first week in March 2000. Respondent denies making such a commitment. e. It was undisputed that Respondent supplied the material and installed the new handrail in Complainant’s home, shortly after he received the aforementioned $1,000.00 deposit. f. Respondent testified that the value of the handrail work was approximately $30.00 for materials and three (3) hours of labor at $30.00 per hour (a total of $120.00). g. For reasons that are not clear, other than the fact that the parties lived in the same neighborhood, the parties failed to keep in contact via the telephone, and instead they appeared to only communicate with one another by virtue of meeting on the street or by the U.S. mail. h. Respondent testified that shortly after entering into the contract, he obtained the material for the shutters and constructed them, off site. He indicates that his labor on this aspect of the project was approximately three (3) hours, at $30.00 per hour and the materials totaled $57.95. i. Respondent testified that shortly after receiving the $1,000.00 down-payment he ordered and paid for the interior door, the storm doors and window. j. According to Respondent, the storm doors took longer to be delivered to his supplier than he had believed it would take, and they did not arrive at the supplier until the early part of April 2000. The storm doors and window were custom orders for Complainant’s home. The interior door was a stock door and Respondent paid $75.00 for same. The window did not arrive at the supplier until the latter part of April 2000. The cost for the two custom storm doors was $491.06 and the window was $279.26. k. Respondent testified that he saw Complainant on the street sometime in mid April 2000 and advised her that the storm doors had come in but not the window and thus, was waiting until all the items were available to complete the project. l. Sometime in April 2000, Respondent was advised by Complainant that her husband had broken his hip and therefore, he should not come to do the remaining work until Complainant advised that her husband was feeling better. m. After receiving the advice not to perform any further work until Complainant’s husband felt better, Respondent believed he should wait to hear from Complainant regarding returning to her home. n. Complainant admits that she never called Respondent to return to her home after the April meeting. In this regard, Respondent also failed to make any further contact with Complainant to see when he should return to the project. o. Finally, on or about the latter part of August 2000, Respondent received a letter from Complainant advising that since he had not done any further work on her home since March 2000, that she went ahead and hired someone else to finish the project. Furthermore, she demanded a return of the $1,000.00 payment. p. At this point, Respondent elected to also communicate with Complainant via letter, despite the fact that both parties have telephones and live in the same neighborhood. In Respondent’s letter he advised Complainant that he had spent the $1,000.00 on the special order materials and had constructed the shutters. He further advised that he had merely been waiting for Complainant to give him the word to return and finish the job. He refused to return any portion of the $1,000.00, claiming that in his opinion, he had spent more than the $1,000.00 and that Complainant owed him money. q. Due to the fact that the parties were unable to resolve their dispute, Complainant ultimately filed the instant complaint with the Registrar of Contractors in June 2001. r. Ultimately one of the storm doors, which was left at the supplier to be sold on consignment, was sold at a considerable discount, for the price of $128.13, and said sum was credited to Respondent’s account. After no resolution was in sight regarding this complaint, Respondent finally elected to use one of the storm doors for another project and in this regard he sent Complainant a check for $278.00 for said storm door. s. At the instant hearing Respondent provided the following accounting on his costs for Complainant’s project:

$1,000.00 deposit -180 labor to build shutters and handrail -279.26 he paid for the window, which is still at the supplier -491.06 he paid for the two storm doors - 75.00 he paid for the interior door - 57.95 shutter materials - 30.00 handrail materials

t. Respondent’s accounting of his costs on the project was not shown to be unreasonable. Based on the above-described numbers, Respondent determined that he was “out” $113.27. Thus, when the one storm door sold for $128.13, he issued Complainant a check for $16.00. Then when he used the other storm door he issued another check to Complainant for the sum of $278.00. Furthermore, he has recently delivered to Complainant the shutters, the interior door, and some locks.

3. Based on the evidence of record it is determined and held that the parties have had a serious and unexplained communication problem. Furthermore, both parties very foolishly entered into a verbal agreement, without specifying the total cost for the project or specific deadlines for the completion of same. Based on the accounting supplied by Respondent and the fact that he delivered the shutters and the interior doors, completed the handrail work, and paid Complainant the total sum of $294.00, it does not appear that Respondent owes Complainant any further money from the original $1,000.00 down payment.

4. Although Respondent should have made a more concerted effort to contact Complainant, regarding when he should have returned to the project, the facts and circumstances presented herein militate against any conclusion that Respondent’s conduct on this project constituted any violation of the applicable charged provisions of the State’s Contracting laws.

5. Notwithstanding the foregoing finding, Respondent is hereby placed on notice that any further construction work, regardless of his relation with the customer, should necessarily involve a written detailed contract.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed. Done this day, November 19, 2001

______________________________________ Mark A. Silver 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