ALJDEC decisions subject to certification as final

2012A-2904-ROC · Registrar of Contractors · 2013-05-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 2, 2013 APPEARANCES: Complainant Nancy Winters was represented by Richard Crenshaw. Respondent Ellen Mary Nolan doing business as Arizona’s Cabinet Refacing Company appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 30.231597-R to Ellen Mary Nolan doing business as Arizona’s Cabinet Refacing Company (“Respondent”). The Registrar received a Complaint against Respondent from Nancy Winters (“Complainant”) regarding a contract for a kitchen remodel at 745 North Yucca Street, Chandler, Arizona. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging a possible violation of A.R.S. § 32- 1154(A)(1). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, which was held on May 2, 2013. Hearing Evidence On Thursday, March 22, 2012, Complainant entered into a contract with Respondent for a kitchen remodel project. The total contract price was $16,880.00, and Complainant wrote a check for the deposit of $8,440.00 the same day. The contract included a cancellation provision that read as follows: “You may cancel this transaction, without penalty or obligation, within (3) three business days from the date below.” According to Complainant, she and her husband decided to divorce on Sunday, March 25, 2012. Complainant testified she contacted Respondent that evening to see if the contract could be cancelled due to her change in circumstances. Complainant stated that Russel Cafaro returned her call on Monday, March 26, 2012, and informed Complainant that if the materials had not been ordered, he would cancel the contract, but that if the materials had already been ordered, it would be too late to cancel. Complainant indicated Mr. Cafaro notified her later that day that the materials had been ordered and the contract could not be canceled. According to Respondent, Complainant did not attempt to cancel the contract within three business days. Respondent indicated Complainant called eight or nine days after the contract was signed and after the materials for the project had been ordered. Complainant testified she did not read the contract until the early part of May 2012 and was surprised to see the cancellation provision. Complainant then contacted her attorney who sent a demand letter to Respondent. When Respondent failed to return her deposit and cancel the contract, Complainant filed a Complaint with the ROC. The parties agree no work has been completed at Complainant’s home because Complainant wants the contract canceled and her deposit refunded. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. Complainant conceded that Respondent did not do any work in the home because Complainant sought to cancel the contract. Respondent stated it was still prepared and willing to complete the work. As such, Complainant failed to establish that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32- 1154(A)(1). 4. To the extent a contractual dispute exists as to Complainant’s attempt to cancel the contract, this is not the proper venue for the resolution of such a claim. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final Order in this matter, the Registrar dismiss Complainant Nancy Winters’ Complaint in Case No. 2012-2904 against Respondent Ellen Mary Nolan doing business as Arizona’s Cabinet Refacing Company’s License No. C-30.231597-R. 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, May 22, 2013.

/s/ Tammy L. Eigenheer 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