ALJDEC decisions subject to certification as final

05F-T1226-ROC · Registrar of Contractors · 2005-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15th, 2005; 1:30 p.m. APPEARANCES: Complainant, Ms. Rosemary Mares, and Respondent, Mr. Christopher Michael Cilano, appeared in their own behalves. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent Mr. Christopher Michael Cilano, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class K-05 License number 149110. 2. Complainant Ms. Rosemary Mares is a homeowner residing in Tucson, Arizona, who verbally contracted with Respondent for the application onto her roof of his elastomeric coating and work incidental thereto, in February, 2005. There is in evidence a written proposal for the work, and the amount which was charged by the Respondent and paid by the Complainant, $850.00. However, while the Respondent testified that this written proposal was given to Complainant before the work was performed on February 17th, 2005, and she authorized the work to begin, Complainant testified that the proposal was not given to her, and disclosure of the price not made to her, until after the work was performed on February 17th, 2005. The written proposal is not signed by Complainant and bears no date other than February 17th, 2005, which was added later only to indicate when payment was made. 3. Although Complainant paid the $850.00, she filed the instant Complaint with the Registrar of Contractors to raise the issue of the Respondent not repairing the roof leaks, and then overcharging her for the work. 4. These parties have a prior history of Respondent being hired by Complainant to perform the same work on the roof ( application of the coating to the flat portion of the roof. The house also has a shingled part on which Respondent has never worked. 5. Respondent testified that in the past he has repeatedly advised Complainant that she needed to have some work done to the shingled part of her roof as it was old and in need of maintenance. Complainant testified that in the discussions between her and Respondent leading up to the work in question she told him she was hiring him this time to correct the leaking. Respondent testified that he did not accept responsibility to correct the leaks, and again advised her that the shingled portion of her roof needed repair work. 6. After Respondent performed this work he charged Complainant $850.00 which she paid on February 17th, 2005. Thereafter, the roof still leaked, but only at the shingled part. Complainant’s sons pitched in and paid for a new roof over the shingled part. This solved the leaking problem. Thus the leaking problem was confined to an area of the roof where Respondent never worked. 7. The time previous to this when Respondent performed the same work he charged her $221.00. That was in the year 2000. While Complainant testified that he told her the proposed price before the work began and Complainant assented to it, Complainant testified that he never told her that information beforehand, and she assumed the price would be the same or close to what he had charged her previously. Respondent testified that the cost of materials has increased in the past five years, justifying the higher price charged to Complainant. Complainant’s son testified that he inquired of others in the business of performing this roofing application and was told that the cost of materials had increased over the past five years, but not to the amount charged by Complainant. This is compound hearsay, and there is not even any identity of whom so stated. Thus it has hardly any probative value. 8. The record proved only that the parties contracted in this case for the work in question; the work was performed; Complainant paid Respondent for the work at a price considerably higher than he charged her five years ago, and the area where Respondent worked was not leaking before or after the work was performed. Beyond these facts it can be found only that the parties have a difference of opinion over the reasonableness of the amount Respondent billed Complainant, and a disagreement over whether Respondent was hired to correct leaks. These two issues cannot be resolved by the parties’ contradictory testimonies, and there is no sufficient evidence beyond their testimonies to resolve them.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Complainant has brought this Complaint and as Complainant she must bear the burden of proving the allegations she has made by a preponderance (more than 50%) of the evidence. A.A.C. R2-19-119. 3. The Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.1, 7, and 3. There is insufficient evidence to conclude that Respondent violated any of the above-cited provisions.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint No. T05-1226, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service shown by the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, September 16th, 2005.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Registrar of Contractors Israel G. Torres ATTN: Alicia Guerra 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488