ALJDEC decisions subject to certification as final

2010A-308473811-ROC · Registrar of Contractors · 2011-04-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 24, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on her own behalf. 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 is the holder of a Class C-21 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent provided the Complainant with a proposal to remove sod from the Complainant’s backyard and replace the sod with pavers and construct a wood pergola in the Complainant’s rear yard. 3. Credible testimony and evidence established that the Respondent arrived at the Complainant’s residence and the Complainant gave the Respondent the agreed upon down payment of two thousand dollars ($2,000.00) and the Respondent began work on the construction site and removed approximately 294 square feet of sod and graded approximately graded approximately 270 square feet of the Complainant’s rear yard for the installation of the new patio. 4. Credible testimony and evidence established that the Complainant was dissatisfied with the terms of the written proposal and refused to sign the proposal until the numbers in the proposal were revised to her satisfaction. 5. Credible testimony and evidence established that the written proposal was intended to function as the parties’ construction agreement. 6. Credible testimony and evidence established that the Respondent’s written proposal failed to contain the minimum elements of a contract as required by applicable statute. 7. Credible testimony and evidence established that the Respondent’s written proposal failed to properly display the Respondent’s ROC number as required by applicable statute. 8. Credible testimony and evidence established that the parties then became embroiled in a contractual dispute as to the exact square footage of materials to be installed and the resulting costs. 9. During the course of contract negotiations the parties’ personal relationship deteriorated rapidly. 10. When the parties were unable to resolve their dispute regarding the terms of the construction agreement the Complainant demanded the return of her two thousand dollar ($2,000.00) down payment. 11. When the Respondent refused to return the Complainant’s two thousand dollar down payment, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors on June 15, 2010. 12. On July 6, 2010, the Respondent’s then attorney, Jessica M. Pena, issued a letter containing a settlement offer with an accompanying check in the amount of $1,340.00. 13. The July 6, 2010, letter provides, in pertinent part, as follows: This amount is for full settlement of your claims against Home Crafters. Home Crafters respectfully requests that you refrain from contacting them directly and that you forward all communication to my attention at the address indicated herein. Additionally, Home Crafters requests that you cease and desist from making any further threats or implied threats made to Home Crafters, its employees or family and friends of Home Crafters. Home Crafters also requests that you refrain from making any slanderous or defamatory statements about Home Crafters and its employees. Finally, Home Crafters requests that you return Home Crafters’ grading stakes. 14. There was no dispute that the Complainant cashed the check for $1,340.00 that was enclosed with the Respondent’s settlement offer. 15. The Complainant then declined to be bound by the terms of the Respondent’s settlement offer which accompanied the check for $1,340.00, and continued to pursue her complaint seeking the remaining $660.00 and disciplinary action against the Respondent’s License. 16. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 17. The assigned Agency Inspector then moved to close the complaint on the following basis: It is the opinion of the inspector that, by taking a deposit and starting the project, the contractor entered into an implied contract. The contractor would have been bound by the terms of the contract that were communicated to the homeowner. The homeowner then accepted a refund, although disagreeing with the amount, thereby cancelled the contract and leaving a disputed money amount that the ROC has no jurisdiction over. 18. The Complainant disagreed with the determination of the Registrar of Contractors and requested an administrative hearing. 19. Credible testimony and evidence established that there is a monetary dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 20. The Respondent’s position in this monetary dispute is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that a liquidated sum is owed to the Complainant. 21. The parties’ monetary dispute can be resolved in a civil court of competent jurisdiction. 22. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned a contract or refused to perform without legal excuse for the abandonment or refusal. 23. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building code. 24. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its work in a professional and workmanlike manner. 25. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act. 26. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to complete a construction agreement for the price stated in the contract. 27. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent knowingly contracted beyond the scope of the Respondent’s License. 28. Notice is taken of the Respondent’s good prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain her burden of proof to establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or building codes), A.R.S. § 32-1154 (A) (7) (Fraudulent act), A.R.S. § 32-1154 (A) (9) (Failure to complete), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond scope of the license of the licensee), and A.R.S. § 32-1154 (A) (3), namely A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 5. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license) and A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1158 (Minimum elements of a contract). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent is in full compliance with the applicable provisions of A.R.S. § 32-1124 (B) (Display of license) and A.R.S. § 32- 1158 (Minimum elements of a contract). It is further recommended that if the Respondent properly provides acceptable written proof that it is in full compliance with the applicable provisions of A.R.S. § 32-1124 (B) (Display of license) and A.R.S. § 32-1158 (Minimum elements of a contract) on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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, April 5, 2011.

/s/ M. Douglas 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