ALJDEC decisions subject to certification as final

2011A-6185-ROC · Registrar of Contractors · 2012-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2012 APPEARANCES: Complainant Janice L. Beckerleg appeared on her own behalf. Respondent Adam Chester Galor, doing business as Old World Hardwood Floors, did not appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Adam Chester Galor, doing business as Old World Hardwood Floors (“Old World”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: Procedural Background On April 4, 2012, the Registrar of Contractors (“ROC”) issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on May 16, 2012, at 8:00 a.m. On the date and at the time scheduled for the hearing, Complainant Janice L. Beckerleg appeared on her own behalf. No one appeared on behalf of Old World. The Administrative Law Judge delayed the commencement of the hearing for approximately twenty minutes to allow for the appearance of Old World, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Old World’s absence. FINDINGS OF FACT 1. Old World is the holder of License No. C-8R.220866-R issued by the ROC.[1] 2. On May 27 2011, Ms. Beckerleg executed two contracts with Old World regarding the installation of hardwood flooring in her home. 3. On November 1, 2011, Ms. Beckerleg filed complaints against Old World with the ROC generally alleging that Old World abandoned its contracts with her. 4. The first May 27, 2011 contract called for Old World to mill Mesquite wood provided by Ms. Beckerleg and to install the Mesquite flooring in one room of her home. See Exhibit 1. The contract price was $5,534.75. Id. Ms. Beckerleg paid Old World a deposit of $3,634.75. Id. Old World milled the wood; however, when it came time to install the wood, Old World would not return any of Ms. Beckerleg’s telephone calls or text messages. Ms. Beckerleg testified that she called the police, who told her to go to the store, ask to see the wood, and to videotape the encounter. Ms. Beckerleg did so, and while there, loaded the wood in her truck and took it home. Ms. Beckerleg testified that because she had paid for the subflooring as part of the deposit, she overpaid Old World, and Old World would not return the overpaid portion of her deposit. Ms. Beckerleg had paid the deposit with her MasterCard credit card and was able to obtain a refund of the overpayment to which she was entitled directly from MasterCard. 5. The second contract dated May 27, 2011, called for Old World to install Mesquite flooring throughout the rest of Ms. Beckerleg’s home. See Exhibit 2. The contract price was $20,710.69. Id. Ms. Beckerleg paid Old World $15,710.69. Id. Old World advised Ms. Beckerleg that it would take two to three weeks to obtain the wood flooring. Ms. Beckerleg testified that after that time period had passed, she attempted to obtain a sample of the wood from Old World; however, every time she requested a sample, Old World gave her an excuse as to why she could not have one. Ms. Beckerleg testified that Old World stopped returning her calls and that she learned that Old World had been locked out of its store by its landlord for failing to pay its rent. Ms. Beckerleg further testified that Old World eventually paid its rent and re-opened for business. 6. Neither contract contained an estimated completion date nor information pertaining to a property owner’s right to file a complaint with the ROC. 7. On November 2, 2011, Ms. Beckerleg discovered that Old World had never ordered the wood. Ms. Beckerleg testified that at first, Old World promised to “make good” on the contract. However, Old World later decided that it could not afford to do so, and would not reverse the charges on her MasterCard payment. Ms. Beckerleg testified that she contacted MasterCard directly and had all of the charges reversed. 8. Ms. Beckerleg testified that she has been reimbursed all funds due and owing to her and that she received the wood she provided to Old World for milling. However, Ms. Beckerleg testified that she wound up paying approximately $6,000.00 more than her contracts with Old World to another contractor to have the flooring installed in her home. CONCLUSIONS OF LAW In this proceeding, Ms. Beckerleg bears the burden to prove, by a preponderance of the evidence, that Old World is subject to discipline for violations of A.R.S. § 32-1154(A)(1) and/or A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, as charged by the ROC in its December 16, 2011 Citation and Complaint. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Beckerleg met her burden of proof as to both of the ROC’s charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse . . . .” The Administrative Law Judge concludes that the credible evidence of record established that Old World abandoned its contracts with Ms. Beckerleg by failing to install the Mesquite flooring it milled for Ms. Beckerleg, and by failing to order the wood for installation after receiving payment for such from Ms. Beckerleg. Therefore, the Administrative Law Judge concludes that Old World violated A.R.S. § 32-1154(A)(1). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1158(B), a contractor is required to include the minimum elements of a contract in writing when contracting. Those elements include the name, license number, and business address of the contractor, the date of the contract, an estimated completion date, the contract price, the amount of any deposit, progress payments, as well as the fact that the property owner has the right to file a written complaint with the ROC. Ms. Beckerleg did not address this alleged violation. However, upon review of both Exhibits 1 and 2 as referenced in the above Findings of Fact, the Administrative Law Judge concludes that Old World failed to include in both contracts an estimated completion date and the information pertaining to the property owner’s right to file a complaint to the ROC. In view of the foregoing, the Administrative Law Judge concludes that Old World violated A.R.S. § 32- 1154(A)(13), specifically, A.R.S. § 32-1158. Based on the foregoing, it is appropriate for the ROC to impose discipline against Old World’s Class C-8R license. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should revoke Old World’s Class C-8R license. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Old World’s License No. C-8R.220866-R shall be revoked on the effective date of the Order entered in this matter.

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 forty (40) days from the date of that certification.

Done this day, June 5, 2012.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of Old World’s prior License record as reflected on the ROC’s public website on May 29, 2012. Such prior license record reflects that Old World’s License No. C-8R.220866-R was revoked on April 5, 2012, and on May 16, 2012. Eight complaints are pending against the license, three complaints have resulted in discipline against the license, and 4 complaints have been resolved, settled, or withdrawn.

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