ALJDEC decisions subject to certification as final

2010A-10684761-ROC · Registrar of Contractors · 2010-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2010 APPEARANCES: The Complainant represented himself. Dustin Collins, Member, appeared for the Limited Liability Company Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. In March of 2009, the parties entered an oral agreement whereby the Respondent would install a four camera surveillance system at a home being completed by the Complainant in Scottsdale, Arizona. 2. The contract price was approximately $3,477.00 and the Complainant paid the Respondent 50% ($1,738.47) of the contract amount. 3. The Respondent and his employee testified that they initially worked approximately 10 person hours running various wires for the system. In addition, the Respondent made approximately 4 exterior openings for cameras and two interior openings for other equipment. According to the Respondent, his labor cost is normally charged at $90.00 per person hour. 4. The residence was under continuing construction and the Respondent was not expected to install or connect the equipment in order to complete the system until some period of time after the initial wiring had been installed. 5. In August of 2009, the Complainant began making attempts to contact the Respondent in order to complete the project. On August 7, 2009, the Complainant was able to contact the Respondent who stated he would get back in contact with the Complainant. The Respondent failed to do so, and the Complainant made several unsuccessful attempts to reach the Respondent by telephone. The Complainant contacted the mother of one of the Respondent’s employees, and on August 17, 2009, the Complainant and Respondent had a telephone conversation that turned acrimonious and resulted in the Complainant making certain accusations against the Respondent. 6. The Respondent claims that on August 17, 2009, he offered to return some money to the Complainant if the Complainant would execute some form of a release to the Respondent. The Complainant testified no such discussion regarding a release occurred. 7. The Respondent went on to testify that he spoke with the Complainant on August 18, 2009, and offered to finish the job, but the Complainant refused the offer and wanted his money back. 8. On August 24, 2009, the Respondent sent an e-mail to the Complainant wherein he acknowledged his dereliction in telephoning the Complainant. The Respondent claims he wanted to finish the job but “…miscommunication will now prevent this from happening.” The Respondent offered to send the Complainant a check in the amount of $642.47. Given this amount as set forth in the Respondent’s e-mail, the Respondent is claiming $1,096.00 as legitimate charges.[1] 9. The Complainant filed the Complaint with the Registrar of Contractors (ROC) on September 14, 2009. By letter incorrectly dated August 24, 2009,[2] the Complainant informed ROC Inspector Deering that “I now do not want him [the Respondent] anywhere near my home nor anywhere in my neighborhood.”

Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32- 1154: (A)(1), Abandonment or refusal to perform without legal justification; (A)(3)/A.A.C. R4-9-108, Workmanship standards; and (A)(13)/A.R.S. §32- 1124 (B), Failure to have the “ROC” acronym or license number on business documents.

1. The Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means that the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. There is insufficient evidence of a workmanship violation. The Respondent did not complete the job. Under such circumstances workmanship is often difficult to evaluate. 5. The evidence regarding the (A)(1) allegation is mixed. It is clear that the parties had reached an impasse by the time of the Respondent’s e-mail of August 24, 2009. The evidence shows that by this time the Complainant had accused the Respondent of being less than honest, and the Respondent had shown himself to be less than reliable. By September 24, 2009, the Complainant had declared the Respondent a persona non grata in the vicinity of his home and neighborhood. It is clear the Respondent would not be finishing the project and that the Respondent’s abandonment would therefore have to be before that date. The Respondent’s August 24, 2009 e-mail states that the Respondent intended to finish the job but that “miscommunication will now prevent this from happening”. This clearly shows the Respondent had determined that he will not complete the job. The question is whether the Respondent, having been paid 50% of the price, was legally justified. At the hearing, the Respondent testified that the Complainant refused the Respondent ‘s August 18, 2009 telephonic offer to finish the job and also told the Respondent he no longer wanted to do business with the Respondent. This is clearly contrary to the “miscommunication” claim of the August 24, 2009 e- mail. The inconsistency raises serious questions about the Respondent’s truthfulness. 6. Based on the record in this case, it is concluded that the Respondent abandoned the project after receiving 50% of the project cost and the abandonment was without legal justification. The violation of (A)(1) is proven by a preponderance of the evidence. 7. The ROC does not have authority to regulate the cost of services or the price of products related to contracting. Under the prevailing economic system, parties enjoy the freedom to enter contracts as long as they are lawful, voluntarily, and knowingly made. Issues raised by the Complainant with respect to asserted excessive charges by the Respondent cannot be answered within the context of the allegations in the Citation and Complaint. However, in his August 24, 2009 e-mail, the Respondent states he will send the Complainant $642.47. This amount is acknowledged as owed after deducting the Respondent’s claimed charges. There were no conditions attached to the proposed payment that had not been made. 8. The Respondent admits to the violation of (A)(13)/A.R.S. §32-1124(B).

Recommended Order Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Respondent Audio Integrators LLC’s Class C-12 license (No. 236532) shall be suspended until the ROC receives written proof that the Respondent has paid or tendered payment to the Complainant in the amount of $642.47.[3] If the ROC receives written proof that the Respondent has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place. If the Respondent timely complies with Order in this case and the Respondent’s license is not suspended, then the Respondent’s license shall be placed on disciplinary probation for a period of sixty days. If the Respondent’s license is suspended, then, upon the termination of such suspension, the Respondent’s license shall be placed on disciplinary probation for a period of sixty days. 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, June 1, 2010.

/s/ Allen Reed Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At the hearing, the Respondent asserted the amount was $1,152.66; but that amount and $642.47 equals $1,795.13, which is more than the $1,738.47 paid by the Complainant. The Respondent’s e-mail refers to costs for “additional work materials”. [2] The month should be September. [3] This does not constitute a finding of all amounts which may or may not be owed to the Complainant.

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