ALJDEC decisions subject to certification as final

2011A-4754-ROC · Registrar of Contractors · 2012-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Tammy Linden. The Respondent appeared through its authorized representative, Robert Smith. 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 K-39 (No. 167369) License issued by the Registrar of Contractors. 2. This is commercial matter where an air conditioning unit on one of the Complainant’s buildings went out of the operation. 3. The Complainant then promptly solicited bids from several different HVAC companies for the replacement of the failed air conditioning unit. 4. Credible testimony and evidence established that on May 25, 2011, the Respondent provided the Complainant with a written estimate to provide an install a new HVAC system on the Complainant’s commercial building, including permit and license fees, for the total sum of $3,698.28. 5. Credible testimony and evidence established that the Complainant accepted the Respondent’s written bid and on June 3, 2011, gave the Respondent a check in the sum of $1,849.64 as a deposit for one half of the cost as per the parties’ agreement. 6. Credible testimony and evidence established that the Respondent accepted and cashed the Complainant’s check. 7. The new air conditioning system had not been installed as of June 14, 2011, and the Complainant contacted the Respondent for an explanation of the delay. 8. Credible testimony and evidence established that the Respondent then informed the Complainant that the new air conditioning system would not be installed until the Complainant provided the Respondent with a signed written estimate. 9. The Respondent then issued a new written estimate which now excluded permit and licensing costs for the installation of the new HVAC system. 10. Credible testimony and evidence established that the Complainant was now in dire need of the new air conditioning system as several pieces of expensive electronic equipment were beginning to malfunction due to the heat in the commercial building. 11. Credible testimony and evidence established that the Complainant then demanded that the Respondent specify an exact day that the Respondent would install the new air conditioning system, and the Respondent agreed that the new air conditioning system would be installed on June 17, 2011. 12. When the Respondent failed to install the new air conditioning system on June 17, 2011, as promised, the Complainant contacted the Respondent and demanded an explanation. 13. When the Respondent failed to respond to the Complainant’s demand and failed to the install the agreed upon air conditioning system, the Complainant contacted an alternative HVAC company on June 20, 2011, and the alternative contractor installed a new air conditioning system on the Complainant’s commercial building on June 21, 2011. 14. The Complainant’s actions in retaining an alternative HVAC contractor to install a new air conditioning unit in the Complainant’s commercial building were shown to be reasonable and justified under the circumstances. 15. Credible testimony and evidence established that on June 21, 2011, the Complainant then informed the Respondent that the new air conditioning system had been installed by an alternative HVAC contractor and demanded the return of its deposit of $1,849.64. 16. On July 7, 2011, a delivery person tried to deliver a new air conditioning system to the Complainant that had been ordered by the Respondent. The Complainant declined to accept delivery of the new air conditioning system. 17. Credible testimony and evidence established that the Complainant has repeatedly contacted the Respondent and demanded the return of the deposit paid to the Respondent. 18. When the Respondent failed to return the Complainant’s deposit to it, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 19. On August 31, 2011, the Complainant requested an administrative hearing for this matter. 20. Credible testimony and evidence presented at hearing established that the Respondent performed no services and provided no materials for the $1,849.64 that it has received from the Complainant. 21. Credible testimony and evidence established that the Complainant received no benefit from the money that it paid the Respondent as a deposit in this matter. 22. Credible testimony and evidence established that the Respondent had repeated opportunities to comply with the terms of the parties’ construction agreement and install the new air conditioning system in the Complainant’s commercial building before the Complainant retained an alternative contractor to install a new air conditioning system. 23. Credible testimony and evidence established that the Respondent failed to install the agreed upon air conditioning system despite the repeated opportunities to do so. 24. Credible testimony and evidence established that the Respondent failed to evidence any interest in complying with the terms of parties’ construction agreement and installing the agreed upon air condition system until after the Complainant was forced to retain an alternative contractor to install a new air conditioning system in the Complainant’s commercial building. 25. Credible testimony and evidence established that it would have been unreasonable for the Complainant to delay the installation of the new air conditioning system in the Complainant’s commercial building in order to make an further attempts to have the Respondent to comply with the terms of the parties’ construction agreement and properly install the agreed upon air condition system. 26. The Respondent’s actions, in failing to install the agreed upon air conditioning system in the Complainant’s commercial building in a timely and workmanlike manner and for the price stated in the first written estimate prepared by the Respondent, are found to constitute a failure to perform after submitting a bid on work without legal excuse for the refusal. 27. The Respondent’s actions, in failing to install the agreed upon air conditioning system in the Complainant’s commercial building in a timely and professional manner after receiving a deposit of one half of the purchase price and leaving the Complainant’s commercial building without air conditioning during the summer, are found to constitute an abandonment of a contract. 28. Notice is taken of the Respondent’s 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). 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 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment of a contract or refusal to perform without legal excuse). 4. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

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 receives and accepts written proof that the Respondent has paid the sum of $1,849.64 as restitution for the Complainant’s deposit in this matter. It is further recommended that if, on or before the effective date of this Order, the Respondent provides written proof acceptable to the Registrar of the payment of $1,849.64 to Complainant, 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, February 2, 2012. /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