ALJDEC decisions subject to certification as final

10F-T0024-ROC · Registrar of Contractors · 2010-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2010 APPEARANCES: George H. Ochoa appeared personally. A R S American Residential Services, L.L.C. was represented by its authorized representative, Rob Martinez. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. A R S American Residential Services, L.L.C. (“Respondent”) is the holder of License No. 185121, a Class K-37 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On July 13, 2009, George H. Ochoa (“Complainant”) filed a written Complaint with the Registrar alleging statutory violations by Respondent. The Registrar designated the Complaint as Case No. T10- 0024. 3. The Registrar issued a Citation and Complaint in Case No. T10-0024 charging violations by Respondent of A.R.S. § 32-1154(A) (15) and (13), specifically A.R.S. § 32-1158. 4. The Registrar forwarded Case No. T10-0024 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. On March 13, 2009, the parties had entered into a written agreement, which provided that Respondent would perform sewer work at Complainant’s Tucson residence for a contract price of $12,000.00. 6. Complainant executed the contract, which contained, among other things, the following language:

Agreement for Service: This Agreement for Service is by and between the Customer and the Company. The estimated price does not include sales or other tax, if any, or cover unforeseen parts or labor, which may be needed after the work begins. Written customer authorization will be obtained before beginning any additional or extended work. I authorize the performance of the work, subject to all the terms and conditions set forth on the reverse side hereof, plus any taxes upon completion. This invoice is due and payable upon receipt.

7. The parties’ contract listed the contract price of $12,000.00. 8. Complainant executed a Transaction Slip, which provided, among other things, for the following: I promise to pay to CitiFinancial Retail Services Division of Citicorp Trust Bank, fsb (the “Bank”) or its assignee the Unpaid Balance of Cash Price for the purchases shown above plus Finance Charges, fees, insurance premiums and all other charges due thereon and grant and confirm a purchase money security interest in the goods shown to secure the unpaid cash price, subject to and in accordance with all terms and conditions of the account agreement with the Bank which establishes the Account with which this purchase is financed, even if I am not a party to that agreement.

9. The amount being financed in the Transaction Slip was $12,000.00 for “sewer line repair in the main street.” 10. The Transaction Slip contained a Notice of Cancellation, which permitted Complainant to cancel the loan within three days. Complainant did not exercise that option. 11. After Respondent performed its scope of work on the subject project, Complainant executed a Certificate of Completion, which read as follows: Notice to Buyer: Do not sign this certificate until you have read it and all the statements made by you are true and correct. I (We) the undersigned Buyer(s) hereby: A. Certify that all goods and/or services sold to me (us) by A R S of Tucson under a Home Improvement Contract dated 3/13/09 (the “Contract”) have been finished and performed completely in accordance with the terms of the Contract, and to my (our) satisfaction, and B. Acknowledge and understand that (1) the Contract evidences my (our) indebtedness. [Emphasis in the original].

12. Complainant contends that he thought that the contract price was $1,200.00 rather than $12,000.00. However, the evidence of record establishes that Complainant agreed to pay the sum of $12,000.00 to Respondent for the work on the subject project, that Complainant agreed to financing terms for the $12,000.00 contract price, and that Complainant agreed that Respondent’s scope of work had been performed in accordance with the parties’ contract. 13. Respondent included the name “Rescue Rooter” in its contract with Complainant. 14. The Certificate of Completion executed by Complainant contains the handwritten name of “A R S of Tucson”; however, it is not clear if that notation was entered by Complainant or Respondent. 15. At the hearing, the Registrar’s assigned inspector, Richard Allen, testified that Respondent has become compliant with the provisions of A.R.S. § 32-1154(A) (15). 16. Complainant failed to present any credible evidence to support the allegation that Respondent failed to comply with the minimum contract requirements required by statute. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (15) and (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. T10-0024 shall be dismissed 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, March 24, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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