ALJDEC

02F-H0234-ROC · Registrar of Contractors · 2002-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2002 APPEARANCES: Cecilia Stiles, Complainant’s representative; Charles Ciangura, Respondent’s owner; Deborah Ciangura, Respondent’s witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Charles Ciangura, as owner of Longhorn Builders, hired Ever Electric to do electrical work on several residential and small commercial projects for which he was the general contractor. On June 18, 2002, Ever Electric, through Cecilia Stiles, filed a complaint with the Registrar of Contractors against Longhorn Builders claiming that some invoices remain unpaid. She later amended the complaint to include more unpaid invoices. 2. The largest claim is for a job at 2627 Beverly. Ever Electric was hired on a "time and materials" basis to install Cat 5 cables instead of the standard telephone lines so that the cables could be used for DSL internet access on the customer's computers. Ever Electric also performed some other services. Ever Electric submitted three invoices to Longhorn Builders for this job; S-373 for $853.81 (which was paid), S-373-F for $771.27 to "Hook up ACs, re hook up barn in rear. Removed all fixtures and outlets, hung new fixtures and installed new plug and switches. Installed four phone jacks. Installed new pvs and wiring for sign. NOTE: NO CHARGE FOR PHONE WORK", and S-373-Tr for $400 reflecting a charge for troubleshooting the cables. Longhorn Builders disputes the charges for invoices S-373-F and S-373-Tr. 3. Charles and Debra Ciangura testified that they had to have two of the cables replaced and would have to have more replaced at substantial cost. Therefore, they argue that the job was not completed properly and payment was not due. Further, because they believe the cables and terminations that were installed by Ever Electric were the cause of the problems, they argued that it is also inappropriate to charge them for troubleshooting, especially since it did not reveal the problem. They also dispute the amount of the charge for troubleshooting since it reflects 10 hours of troubleshooting and they were only aware of 2 hours invested in testing the lines. 4. As proof that Ever Electric's work was the problem, the Cianguras submitted an invoice, a report and an estimate from K-tek, Inc. The documentation from K-tek is confusing, however, and includes work for which Ever Electric was not hired. It is not clear from the documentation that installation of the cables was the problem. Further, K-tek was hired by Ever Electric before it was hired by Longhorn Builders to investigate the same problem. According to the testimony and contemporaneous letters of Cecilia Stiles, K-tek found the problem to be with the terminations on the cables and other unrelated issues and not with the cables themselves. In a letter, Wayne Stiles of Ever Electric admitted attempting to install three terminations but did not charge for them because it was only an attempt and not in his area of expertise. Although hearsay, the letter appears reliable because it is an admission against Mr. Stiles’ interests. It also states that the computer installer did the other terminations and re- installed some of his own terminations and still couldn't get them to work. Cecilia Stiles requested the name of the computer installer in order to discover his involvement but the Cianguras did not provide his name at any time prior to or at hearing. Longhorn Builders did not inform Ever Electric that the cables were defective or installed wrong after K-tek did its initial repair work. This is in spite of the fact that Ever Electric had assured Longhorn Builders that it would reinstall the cables at no cost if it were shown that the cables were the problem. Considering the vagueness of K-tek's billing and report, the conflict between what the report and billing are supposed to mean with the results of K-tek's and Ever Electric's tests, and the reluctance of Longhorn Builders to release the name of the computer installer, it appears most likely that the problem with the computers was not the cable installation or anything done by Ever Electric. The evidence at hearing established that the bill for 2627 Beverly is overdue. 5. Ever Electric alleged that it repaired some wires that had been cut in a vandalism incident at 3340 Airfield. Longhorn contends that there was no vandalism and no police report to prove it. Charles Ciangura testified that some circuits were found to not be working and Ever Electric was called back to correct its work. Therefore, he argued, Longhorn Builders is not responsible to pay additional money for the job. 6. Ever Electric claimed it was due for an electrical panel that was stolen from a job site. Although Longhorn Builders agrees it is responsible for materials stolen from a site and made an insurance claim for several missing doors, Mr. Ciangura questions whether the panel had been installed or was just left at the job site. He also questions the legitimacy of the invoice because the cost has been invoiced at $230 and $250 and no proof of the price, such as the model, description or invoice, has been provided. 7. Ever Electric claimed payment for $340 in unpaid extras for a job for Clint Holder. This job was done on a contract for $3210.00, however, and no change orders were offered to show that the extra charge was approved. Longhorn Builders paid the rest of the contract price. 8. Ever Electric claimed payment for $75.00 on the 907 S. Hassayampa job. Charles Ciangura argued that he paid the final bill in full and did not approve any change orders. Ever Electric did not provide an invoice for the balance until June 17, 2002 when the invoice that had not been fully paid was done on July 30, 2001. Although no contract was provided, the final bill dated September 21, 2001 was submitted by Longhorn Builders and did not reflect the unpaid charge. Due to the age of the account and the fact that the final bill did not mention it, it appears most likely that the matter was settled at the time of the bill and was no longer in dispute. Since the final bill was paid in full, the weight of the evidence has not established that there was a failure to pay on the account. 9. On a job at 3632 Roosevelt, Ever Electric claimed an unpaid charge of $20 from an invoice dated March 7, 2001. The final bill dated April 23, 2001 reflects that the "balance of final" was $555.00, which was paid in full on May 7, 2001. The $20 charge and a $5 service charge were not billed until June 17, 2002. This too was most likely settled before the final billing. The weight of the evidence has not established that Longhorn Builders failed to pay the charge. 10. According to the records of the Registrar of Contractors, the license in this matter has had 2 complaints filed against it and has no disciplinary record in the last two years. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(7) and (11). 3. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 4. The Arizona Revised Statutes at § 32-1154(A)(11) provides grounds for suspension or revocation of a contractor’s license for failure to pay money in excess of $750 when due for services or materials provided on a construction project if the contractor has the ability to pay or, if not, if he has received sufficient payment on the project to pay the charges. 5. In this case, the Complainant has established that Respondent has improperly failed to pay the invoices for 2627 Beverly in the amount of $1171.27. Respondent’s failure to pay this amount is a violation of A.R.S. § 32-1154(A)(7) and (11). Complainant has not established a violation regarding any of the other invoices or charges submitted in connection with the instant complaint. 6. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding provided the records are introduced into evidence. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. In this case, consideration should be given to the good record of the Respondent in the last two years. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Registrar’s Order, Respondent’s Class B-02 license be temporarily and actively suspended until the Registrar receives proof that Respondent has paid Complainant $1171.27 as payment on the 2627 Beverly project. It is further recommended in addition to the foregoing indefinite license suspension, if any, that Respondent’s Class B-02 license shall be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later. Done this day, November 4, 2002 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

Registrar of Contractors Michael P. Goldwater ATTN: Jennifer Brown 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