ALJDEC decisions subject to certification as final

2010A-1252982-ROC · Registrar of Contractors · 2010-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2010 at 1:00 p.m. APPEARANCES: The Complainants appeared through Christiane Murray. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent’s License No. C-65R.257606-R was canceled on May 28, 2010. 2. This is a residential matter where the parties entered into a written construction agreement wherein the Respondent agreed to fabricate and install new energy efficient windows in the Complainants’ residence for the total sum of $4,566.76. 3. Pursuant to the terms of the parties’ construction agreement the Complainants paid the sum of $2,283.38 to the Respondent as a down payment. 4. The Respondent then agreed to deliver and install the newly fabricated windows within thirty (30) days. 5. There was no dispute that the Respondent then abandoned the construction project and failed to fabricate and deliver the agreed upon windows to the Complainants. 6. When the Respondent failed to deliver and install the agreed upon windows the Complainants demanded that the Respondent return their monetary deposit to them. 7. Undisputed credible testimony and evidence established that the Respondent agreed to return the Complainants’ money to them within thirty (30) days. 8. When the Respondent failed to return their money the Complainants filed a Complaint against the Respondent with the Registrar of Contractors. 9. When the Respondent failed to resolve the issues set forth in the Complaint the Complainants requested an administrative hearing and the Registrar of Contractors issued a formal Citation and Complaint in this matter. 10. The Respondent then filed a written Answer which provides, in relevant part, as follows: Following its receipt of the Complaint at the Company’s Georgia headquarters last week and review of the circumstances, the Company decided that a full refund to the Complainants would be appropriate…the Company will provide Complainants with a full refund of the $2,283.38 deposit. 11. Undisputed credible testimony and evidence established that the Respondent failed to honor its agreement to provide a full refund of the $2,283.38 deposit to the Complainants. 12. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project and failed to provide and install the agreed upon windows and then refused to return the Complainants’ monetary deposit to them. 13. Undisputed credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by returning the Complainants’ $2,283.38 to them. On the contrary, credible evidence of record establishes that the Respondent has repeatedly failed to return the Complainants’ money to them despite the undisputed fact that the Respondent has repeatedly agreed to do so. 14. The Respondent’s actions, in abandoning the parties’ construction project and refusing to return the Complainants’ deposit of $2,283.38 to them despite repeated promises to do so, are found to constitute a wrongful act. 15. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment or refusal to perform) and A (7) (Wrongful Act). RECOMMENDed Order

In view of the foregoing, it is recommended that the Respondent’s License No. C65R257606-R be revoked. In the event of certification of this 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 the certification.

Done this day, August 5, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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