ALJDEC decisions subject to certification as final

2011A-4143-ROC · Registrar of Contractors · 2011-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2011 APPEARANCES: American Interiors, L.L.C. was represented by its authorized representative, Brian Frost. Celano Construction, L.L.C. was represented by its authorized representative, Pete Celano. 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. American Interiors, L.L.C. (“Complainant”) is the holder of License No. 174129 issued by the Registrar of Contractors (“Registrar”). 2. Celano Construction, L.L.C. (“Respondent”) is the holder of License No. 256864, a Class KB-2 contracting license issued by the Registrar. 3. On July 19, 2011, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent of a restocking fee for carpet that was ordered and then cancelled by Respondent. The Registrar designated the Complaint as Case No. 2011-4143. 4. The Registrar issued a Citation and Complaint in Case No. 2011-4143 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (11). 5. The Registrar forwarded Case No. 2011-4143 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On or about July 11, 2011, Respondent’s member and qualifying party, Pete Celano, went with Respondent’s client, Janice Christo, to Complainant’s business for carpeting. 7. Complainant prepared a written agreement dated July 11, 2011, for the purchase of carpeting, memory foam, and “spillguard”. Mr. Celano executed the agreement on behalf of Respondent, who was named as the client. Because Respondent was a licensed contractor, Complainant gave discounted contractor’s pricing to Respondent, who passed the savings on to Ms. Christo. 8. The contract price for the materials was $5,530.06. Ms. Christo paid the down payment of $2,500.00 by check to Complainant. 9. The written agreement contained the following term that was accepted by Respondent: “Any job canceled or any stocked material returned, after deposits have been taken, will be charged a 25% restocking/cancelation fee.” 10. After Respondent signed the agreement and Complainant received the down payment, Complainant ordered the selected materials. 11. On July 12, 2011, Mr. Celano went to Complainant’s business to cancel the agreement due to Ms. Christo’s wishes. The materials were ready for pickup at that time. 12. On or about July 13, 2011, Ms. Christo went to Complainant’s business alone and informed Complainant’s staff that she was putting a stop payment on the down payment check. 13. Complainant had to restock the ordered materials. 14. Respondent informed Complainant that it would not pay the contractually agreed upon cancelation fee of 25% or $1,267.20. 15. Pursuant to the terms of the agreement, Respondent agreed to the cancelation fee at the time of accepting the agreement and the payment of the down payment. 16. The evidence of record established that Respondent owes Complainant the cancelation fee in the amount of $1,267.20.

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 by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. Respondent has failed to pay the contractually agreed upon cancelation fee in the amount of $1,267.20 for canceling the parties’ agreement. RECOMMENDED ORDER Respondent’s License No. 256864 shall be suspended on the effective date of the Order entered in Case No. 2011-4143 until Respondent provides the Registrar with written proof, and the Registrar approves such proof, that Respondent has paid Complainant the cancelation fee of $1,267.20 in full. If Respondent provides the Registrar with written proof that Respondent has paid Complainant the cancelation fee of $1,267.20 in full on or before the effective date of the Order entered in Case No. 2011-4143, and the Registrar approves such proof of payment, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s contracting license shall be placed on disciplinary probation for a period of 30 days commencing on the effective date of the Order entered in Case No. 2011-4143 or the date on which the Registrar approves Respondent’s written proof of payment in full to Complainant, whichever is later. 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, December 14, 2011.

/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