ALJDEC decisions subject to certification as final

08F-1422-ROC · Registrar of Contractors · 2008-09-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2008 APPEARANCES: Complainant appeared pro per; Respondent was represented by Kiernan Mattson, managing member. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 12, 2008. 2. Complainant Jay Bucher (“Complainant”) is the owner and occupant of a residence located at 7315 Wingshadow Road in Scottsdale, Arizona (the “premises/project”). 3. Respondent Synscapes of Arizona, LLC (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 193048, Class K-26 (Dual Landscaping) issued by the Registrar of Contractors (“ROC”) on February 14, 2004. Kiernan Mattson is a member and principal of the company. 4. Complainant filed a complaint with the ROC on December 19, 2007 wherein he alleged that Respondent breached the contract he had with Respondent because Respondent (1) failed to deliver and install appropriate quantities of crushed aggregate, which was to be used as a base for the synthetic grass putting green installed in his backyard; (2) failed to deliver the agreed-upon square-footage of synthetic lawn; and (3) failed to install synthetic lawn in his front yard as agreed. 5. On January 24, 2008, Complainant filed a correspondence with the Registrar of Contractors wherein he requested a formal Citation be issued against Respondent. 6. On July 2, 2008, the Registrar issued a CITATION AND COMPLAINT in Case No. 08-1422 charging Respondent with possible violations of A.R.S. §32-1154A (1), (2), (7) and (13) (namely, A.R.S. §32-1124 (B)). 7. Respondent filed an Answer with the Registrar of Contractors on July 14, 2008, wherein it asserted, inter alia, that Complainant “signed the contract accepting the work performed as per contract.” 8. At the hearing, Complainant testified and submitted Exhibits 1 through 17 which were marked, admitted and considered. 9. Kiernan Mattson testified on behalf of Respondent and submitted Exhibits A through F which were marked, admitted and considered. 10. From the evidence elicited at the hearing, the following salient facts are important to note: a. On October 2, 2006, Complainant and Respondent entered into a contract, the essential terms of which stated that, in return for payment of $10,398.27 by Complainant, Respondent shall: (i) “Provide and install lawn consisting of 765 square feet of SYN-D turf and 360 square feet of PGD 499N Turf. Turf quantities are the requirements need to complete the project based on manufactured turf dimensions. The final actual size of the installation may be less than turf required above.” (ii) “Provide and install 11 tons of crushed aggregate base consisting of +/- 2 inches of crushed aggregate.” b. Because the contract contained no other references to the scope of work, including the location of the putting green, the size of the putting green, the placement of fringe grass around the putting green, or placement of artificial turf in the back and front yards, the Respondent’s salesman prepared a sketch regarding the putting green (Exhibit 8). The sketch showed a putting green in the backyard with 360 square feet of putting surface and 330 square feet of fringe. c. Complainant and Respondent’s salesperson also jointly completed and signed a Special Instruction Sheet (Exhibit 9) The relevant portions of the Special Instruction sheet called for “standard 3” base materials… more in putting green area”. The Special Instruction sheet made no mention of placement of turf in the front yard other than “Number of Seams – 3 to 4 in front yard, fringe in backyard”. d. It was undisputed that, at the time of execution of the contract, some amount, albeit an unspecified amount, of artificial turf was intended to be placed in Complainant’s front yard. e. The installation occurred on October 17 and 18, 2006. The evidence presented established that, at the time the work was performed by Respondent, Complainant instructed Respondent not to install the front yard turf because he had not yet obtained approval for such an installation from his Homeowner’s Association. f. Respondent, at the direction of Complainant, placed an additional quantity of turf in the backyard, which, according to Complainant is approximately 64 square feet installed. No evidence was presented as to the size of the roll of turf that would have been required to add the additional 64 square feet of turf. g. Complainant estimated that between 7 and 71/2 tons of crushed aggregate were delivered to his home for use as a base for the putting green and turf. Respondent did not dispute this estimate. Rather, Respondent testified that the 11 tons of crushed aggregate referred to in the contract is an estimate only. Respondent testified that the job did not require 11 tons of base material. Complainant had removed the pre- existing sod himself and it was unnecessary to use the full 11 tons to prepare a sufficient base. Complainant testified that he does not allege that the base for the turf was insufficient, only that he bargained for 11 tons and paid for 11 tons, and he should have received 11 tons. h. On October 18, 2006, upon completion of the installation of the base for the turf, Complainant was presented with the last page of the contract which contained a pre-printed form to indicate his approval for the base. Complainant executed the document, indicating his approval (Exhibit A). The document signed by Complainant read as follows: “I certify that I have inspected the base prior to installation of the turf. The base, installed by Contractor is acceptable. Contractor has my approval to continue with the installation of the turf.”

i. On October 18, 2006, upon completion of the installation of the turf, Complainant was presented with the last page of the contract which contained a pre-printed form to indicate his approval for the installation of the turf. Complainant executed the document, indicating his approval (Exhibit A). The document signed by Complainant read as follows: “I certify that I have inspected the project after it’s (sic) completed installation. Therefore, the contractor has fulfilled all it’s (sic) obligations under this agreement. All final charges are approved.”

j. On October 23, 2006, Complainant received a letter from Respondent indicating that the final payment for the job had been charged to his credit card as previously authorized. k. On October 25, 2006, Complainant went to the Respondent’s office to complain that the front yard installation had not yet been completed. Thereafter, and up through hearing, Respondent has taken the position that it has completed the project per the terms of the contract and that Complainant approved the job as completed on October 18, 2008. l. Complainant took the position at hearing that when he signed the approval of the installation he was under the mistaken belief he was only approving the work done in the backyard. m. Complainant testified that on May 11, 2007 he hired U.S. Turf to install synthetic turf in his front yard at a cost of $3,197.12 (Exhibit 13). Complainant also testified that he has calculated that he was overcharged $3,164.26 by Respondent. Complainant testified that he arrived at that figure by applying the square footage installed to the square footage he contracted for as against the contract price.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. H07-0397 charged Respondent with possible violations of A.R.S. §32- 1154A (1) (2), (7) and (13) (specifically A.R.S. §32-1124(B)). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. …

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. …

13. Failure in any material respect to comply with the provisions of this chapter.

A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. In Arizona, the Registrar’s authority to resolve bona fide contractual disputes involving licensed contractors is ancillary to its regulatory mission.[1] The Registrar may determine underlying facts and apply rules of contract interpretation to determine whether a licensed contractor has committed a statutory violation.[2] 5. In the case at hand, Complainant seeks to set aside his release, alleging his unilateral mistake that he thought he was signing off on the backyard installation of turf only. Complainant then, if the release is set aside, seeks to obtain damages for what he asserts is a breach of contract. These are typically issues of contract law more properly before a Court of law and equity, and not before an administrative tribunal in a disciplinary hearing. However, in light of the fact that Respondent is alleged to have violated A.R.S. § 32-1154A (abandonment of a contract or refusal to perform…) this tribunal will address the release and contract. 6. Complainant alleges Respondent abandoned, or failed to complete, the contract by failing to deliver 11 tons of aggregate. Yet, Complainant signed off on, and approved, the base of crushed aggregate as installed, as well as the completed installation. If Complainant is bound by this release, Complainant’s claims fail. If Complainant prevails on his argument that the release not binding on Complainant because he was mistaken, then, and only then, will this tribunal consider whether the 11 tons was an estimate, or was a specific enforceable term of the contract for which an award of restitution would be appropriate. 7. This tribunal holds that it need not address the issue of whether 11 tons was an estimate because Complaint executed a document indicating both his approval of the base and the completed job. The language of the release is clear and unambiguous. Complainant’s misunderstanding of the nature of the release should not, and will not be claim be cause to set aside the release as it is not a reasonable position. The release for the entire installation clearly stated “I certify that I have inspected the project after it’s (sic) completed installation. Therefore, the contractor has fulfilled all it’s obligations under this agreement. All final charges are approved.” Complainant is bound by this language and his claim that Respondent violated A.R.S. § 32-1154A(1) fails. This same analysis applies to Complainant’s claims that Respondent failed to deliver the agreed-upon square-footage of synthetic lawn; and failed to install synthetic lawn in his front yard as agreed. 7. Thus, this tribunal determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A(1). 8. It is further determined and concluded that, for the same reasons, Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32- 1154A(2). 9. It is further determined and concluded that, for the same reasons Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32- 1154A(7) 10. Finally, it is further determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A(13) and, namely, A.R.S. §32-1124(B). No evidence was presented in support of this claim.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. 08-1422 be dismissed.[3] Done this day, September 29, 2008. Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

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

Registrar of Contractors Armando Contreras, Acting Director 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 118, 125 (App. 1984). [2] Id. at 407-08, 690 P.2d at 126-27. [3] 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 in this matter will be forty (40) days from the date of that certification.

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