ALJDEC decisions subject to certification as final

07F-G1183-ROC · Registrar of Contractors · 2007-09-24

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2007

APPEARANCES: Donald Henderson appeared on behalf of Complainants; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Donald and Elizabeth Henderson bring this action regarding an agreement entered into with Respondent Guidell Addison Faust dba America’s Energy Savers for the purchase and installation of windows in their home. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Having considered Complainant’s evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of revocation. FINDINGS OF FACT 1. Respondent Guidell Addison Faust dba America’s Energy Savers is the holder of a class C-65 specialty residential contracting license (No. 184923) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform installation and repair of glass, glass products, plastics, frames, holding members, and all materials common to the industry.[1] Respondent is a sole proprietorship. 2. Under a contract executed on September 1, 2006, Respondent was to furnish and install 16 windows as described in the contract. By the terms of the contract, Respondent was to begin work within four to six weeks from the contract date and to complete the job within two to three days of starting it. Complainants were to pay half of the $7100.00 contract price ($3550.00), which they did by check dated September 1, 2006. Respondent deposited that check on September 18, 2006. Respondent then did nothing further on the contract. Respondent did not deliver the windows or install them. Respondent corresponded with Complainants through October, November, and December of 2006, about the installation. He was having personal family health problems and gave those and other reasons for not working on the contract. By the end of October, Complainants just wanted to cancel the contract and get their half-payment back. Respondent did nothing further. 3. Complainants filed an ROC complaint on January 22, 2007. They were informed that Respondent’s license had been revoked on January 10, 2007. 4, Respondent did not appear for the hearing on September 4, 2007. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainants have met the burden with respect to several of the cited provisions. 2. Respondent has violated Arizona Revised Statutes (A.R.S.) § 32- 1154(A)(1) by abandoning or refusing to perform work contracted for, without legal excuse. Respondent has also violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(7) by wrongfully failing to perform his contractual duties, creating a breach of contract. 3. Respondent has substantially harmed Complainants and failed to timely perform the work he was contracted to do. 4. Under the circumstances of this case, this tribunal concludes that the appropriate remedy is to revoke Respondent’s license. This is the only remedy that will adequately protect the public. In addition, Complainant has shown $3,550.00 in restitutionary damages that Respondent should pay.[5] If Respondent fails to pay, Complainant may then make a claim to the Residential Contractors’ Recovery Fund. RECOMMENDED ORDER IT IS RECOMMENDED that Class C-65 license 184923 held by Guidell Addison Faust dba America’s Energy Savers be revoked. IT IS FURTHER RECOMMENDED that Respondent Guidell Addison Faust dba America’s Energy Savers pay Complainants Donald and Elizabeth Henderson $3,550.00 in restitution on or before the effective date of the Registrar’s Final Order.

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 35 days from the date of that certification.

Done this 24th day of September 2007.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of September 2007, to:

Fidelis V. Garcia Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] See, Arizona Administrative Code (A.A.C.) R4-9-103 for a description of residential license classifications. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] A.R.S. § 32-1156.01 provides authority for an Administrative Law Judge to recommend an award of restitution.

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