ALJDEC decisions subject to certification as final

2011A-4971-ROC · Registrar of Contractors · 2012-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Christopher Moore. 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-34 (No. 265113) License issued by the Registrar of Contractors. 2. This is a residential matter where on August 8, 2011, the parties entered into a construction agreement for the Respondent to install a colored coating on the Complainant’s driveway for the total sum of $1,500.00. 3. There was no dispute that pursuant to the terms of the parties’ construction agreement, the Complainant paid the Respondent the sum of $750.00 as a deposit for the agreed upon construction work. 4. Credible testimony and evidence established that the Respondent used a written invoice in an attempt to memorialize the parties’ construction agreement and that the invoice was signed by the Complainant. 5. Credible testimony and evidence established that both parties were fully aware of the fact that the Complainant’s homeowner association (“HOA”) would have to approve the installation of the color coating on the Complainant’s driveway before the Respondent could actually apply the agreed upon color coating to the Complainant’s driveway. 6. There was no dispute that the Complainant’s HOA declined to approve the application of the colored coating and that consequently, the Respondent was unable to perform the agreed upon construction work. 7. The Complainant then requested the return of her $750.00 down payment. 8. There was no dispute that the Respondent declined to return the Complainant’s money to her on the basis that it had a company policy against returning deposits and that the invoice which was utilized to memorialize the parties’ construction agreement allegedly specified that there would be no refunds of deposits. 9. When the Respondent refused to return her money to her, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 10. The parties were unable to resolve their dispute and on October 19, 2011, the Registrar of Contractors issued a Citation and Complaint charging the Respondent with alleged violations of A.R.S. § 32-1154 (A) (1) (abandonment or failure to perform without legal excuse) and A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1158 (minimum elements of a contract). 11. Credible testimony and evidence established that the parties are in sharp dispute as to the exact terms of their construction agreement, and the Respondent’s invoice provides minimal guidance as to the terms of their construction agreement. 12. Credible testimony and evidence established that the Respondent’s written Invoice failed contain the estimated date of completion, the Respondent’s business address, a description of the work to be performed, and a statement in bold print that the property owner has a right to file a written complaint with the Registrar of Contractors within the time period set forth in A.R.S. § 32-1154 (A), 13. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform the agreed upon construction project because the Complainant’s HOA refused to grant its authorization for the Respondent to apply the agreed upon colored coating to the Complainant’s driveway. 14. Credible testimony and evidence established that the Complainant would not have given the Respondent a deposit of $750.00 for colored coating application if she had known that it was going to be non-refundable if her HOA declined to grant its required approval. 15. Credible testimony and evidence established that the Respondent performed no construction work on the Complainant’s residence and that the Complainant received nothing of value for the $750.00 that she paid to the Respondent. 16. 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 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. A.R.S. § 32-1158 provides, in pertinent part, as follows:

B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

4. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158. 5. The credible evidence of record was inadequate and failed to establish a violation of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or failure to perform without legal excuse). 6. 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 of Contractors receives and accepts written proof that the Respondent has, as restitution, paid the sum of $750.00 to the Complainant and that the Respondent has brought its written construction agreements and business practices to within full compliance with the provisions of A.R.S. § 32-1158. It is further recommended that if the Respondent properly accomplishes the above described actions, 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, January 19, 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