ALJDEC decisions subject to certification as final

07F-2163-ROC · Registrar of Contractors · 2008-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2008 APPEARANCES: Complainant Mahvash Sabet appeared on her own behalf. Respondent Planet Organizer of Tucson, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Planet Organizer of Tucson, L.L.C. (“Planet”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Background On January 7, 2008, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on February 11, 2008 at 1:30 p.m. On the date and at the time scheduled for the hearing, Complainant Mahvash Sabet appeared on her own behalf. No one appeared on behalf of Planet. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Planet, or the receipt of any information that would constitute good cause for Planet’s absence or delay. No such information was received. Therefore, the hearing proceeded in Planet’s absence. FINDINGS OF FACT Planet is the holder of a Class C-30 license (No. 221587) issued by the Registrar of Contractors (“ROC”).[1] On or about December 17, 2006, Complainant Mahvash Sabet contracted with Planet for Planet to install a custom master bedroom closet with an installation date of January 31, 2007. See copy of contract contained in the case file, the contents of which administrative notice was taken. The total contract price was $9,075.00. Id. Ms. Sabet paid Planet a deposit of 50% of the contract price, in the amount of $4,500.00. Planet failed to install the closet by the agreed upon date of January 31, 2007. On January 31, 2007, Ms. Sabet called Planet to inquire as to when the closet would be installed, and was advised that Planet could not give her a definitive installation date. On February 2, 2007, Ms. Sabet sent Planet a letter advising that Planet had breached its contract with her, and requesting a refund of the full deposit. See copy of letter dated February 2, 2007, contained in the case file. Planet agreed to refund Ms. Sabet’s deposit, however, Planet failed to do so. Consequently, on March 23, 2007, Ms. Sabet filed a complaint against Planet with the ROC. In her complaint, Ms. Sabet alleged the following: As you see I was suppose[d] to have my master bedroom closet installed by 1/31/2007 but still no closet was installed or phone call made from Ms. Cindy and after I sent a letter for my money to be returned to me for deposit for the amount of $4500 there has not been any kind of contact from Planet Organizer yet. Cindy met me in the parking lot to get my check and signature but she has not sent me my deposit and I still do not have any closet.

6. At hearing, Ms. Sabet testified consistently with the findings set forth above. CONCLUSIONS OF LAW In this proceeding, Ms. Sabet bears the burden to prove, by a preponderance of the evidence, that Planet is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(7), and/or (A)(13) as charged by the ROC in its July 17, 2007 Citation and Complaint. See Arizona Administrative Code R2-19-119. 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). The Administrative Law Judge concludes that Ms. Sabet met her burden of proof as to all three of the ROC’s charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based on the weight of the credible evidence of record, that Planet abandoned its contract with Ms. Sabet without legal excuse for such abandonment. Therefore, the Administrative Law Judge concludes that Planet violated A.R.S. § 32-1154(A)(1). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include their contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement would be applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Ms. Sabet did not address this alleged violation. However, a copy of the parties’ contract document is contained in the case file, the contents of which administrative notice was taken. That document does not contain the letters “ROC”, nor does it contain Planet’s license number. In view of the foregoing, the Administrative Law Judge concludes that Planet violated A.R.S. § 32-1154(A)(13). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Planet committed wrongful acts that substantially injured Ms. Sabet by abandoning its contract with Ms. Sabet and failing to refund Ms. Sabet her deposit in the amount of $4,500.00. Therefore, the Administrative Law Judge concludes that Planet violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Planet’s Class C-30 license. Upon consideration of all of the facts and circumstances presented by this case, including Planet’s failure to appear for hearing and Planet’s canceled license status, the Administrative Law Judge concludes that the ROC should revoke Planet’s Class C-30 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Planet’s Class C-30 license shall be revoked on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, February 26, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of February, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Planet’s contracting license was canceled on January 2, 2008. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826