ALJDEC decisions subject to certification as final

2012A-5422-ROC · Registrar of Contractors · 2013-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 30, 2013 APPEARANCES: Complainant Patricia J. Merritt appeared on her own behalf. A representative for Phoenix Custom Builders LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 61.240995-R to Phoenix Custom Builders LLC (“Respondent”). On November 7, 2012, the Registrar received a Complaint against Respondent from Patricia J. Merritt (“Complainant”) alleging that Respondent failed to complete its contract with Complainant to paint her kitchen and to install a new countertop, sink, faucet, and cabinets. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1) and A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158(B). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. Respondent stated Complainant wanted to wait until spring to complete the project, but Respondent was ready and able to proceed with the job. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on May 30, 2013, at 8:15 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on May 30, 2013. Complainant testified on her own behalf and submitted 10 exhibits. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence On March 28, 2012, Complainant signed a contract with Respondent to paint her kitchen and to install a complete refacing for her kitchen cabinets, a new countertop, and a new sink with faucet. According to the contract, the project would take three to six weeks to complete for a total cost of $11,750.00. The contract did not include a provision that Complainant had a right to file a written complaint with the Registrar, the Registrar’s telephone number or website address, or that complaints must be filed within an applicable time period. At the time she signed the contract, Complainant paid a deposit of $5,875.00 toward the total cost. On March 28, 2012, Adrian Vasquez with Respondent took measurements for the cabinets and countertop. On April 3, 2012, Mr. Vasquez took additional measurements and notified Complainant she could purchase the stove, stove vent, sink, and faucet to be installed. Between April 16, 2012, and June 20, 2012, Complainant contacted Respondent on multiple occasions. Complainant was informed the cabinet doors had been received and needed to be sanded and stained. On June 20, 2012, a representative from Respondent that would be performing the job visited Complainant’s home to take additional measurements. He informed Complainant that she would not be happy with the refacing because the cabinets were not in good condition. The installer also showed Complainant a sample of the doors that had been ordered for her. Complainant notified him that the doors were not the same style she had chosen and the color did not look like the picture she was shown. On June 20, 2012, Complainant agreed to also replace the cabinets. The added contract provision was added to the original contract with a written note indicating Complainant had paid $1,500.00 toward the $3,000.00 additional cost for cabinets. Complainant indicated that because the doors had to be reordered, she would like a darker color. On or about July 9, 2012, Mr. Vasquez notified Complainant that the new cabinet doors had been received and were ready to be stained. He did not give a date for installation. On July 11, 2012, Mr. Vasquez asked Complainant if she could go to Home Depot and pick out a style and color of the cabinets she wanted. On July 17, 2012, Complainant went to Home Depot with Mr. Vasquez. Mr. Vasquez informed Complainant he would call or fax in the order when he returned to Phoenix and that it would take three to four weeks to install. On or about September 5, 2012, Complainant left a message for Mr. Vasquez asking him to call her. Mr. Vasquez did not return Complainant’s call, but later that day, an installer for Respondent called Complainant and said he would be by the next afternoon. On September 6, 2012, the installer arrived and indicated he needed to take his own measurements. During the course of his visit, the installer informed Complainant that he had come out of retirement to help Respondent get caught up. The installer told Complainant that he had been hearing numerous stories similar to Complainant’s experience and that her cabinets had not been ordered. Complainant indicated she wished to cancel the contract as she could not wait any longer for the project to be completed. On September 7, 2012, Mr. Vasquez left a message for Complainant. On September 10, 2012, Complainant left a message for Mr. Vasquez. When Mr. Vasquez returned the call, Complainant informed him she was unwilling to wait any longer for her cabinets as the weather would be turning colder and she did not want construction going on in her home during the winter months. Mr. Vasquez told Complainant that if she did not go forward with the project, he would place a lien against her home for breach of contract. Complainant stated she had been advised to file a Complaint with the Registrar and would do so. On September 11, 2012, Complainant left two messages for Mr. Vasquez. Mr. Vasquez did not return Complainant’s calls. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 18, 2013. Such prior License record reflects that Respondent’s License No. C-61.240995-R was revoked on April 30, 2013. Such prior License record also reflects that there were five open complaints, two complaints that resulted in discipline, and four complaints that were resolved, settled, or withdrawn against Respondent’s License No. C-61.240995-R. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq 2. Respondent’s administratively revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C). 3. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. § 41-1092.04 and A.R.S. § 41- 1092.05(D). 4. Complainants bear the burden of proof to establish Respondent’s statutory violations 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). 5. The contract Complainant signed on March 28, 2012, indicated that the project would take three to six weeks to complete. Complainant notified Mr. Vasquez she wished to cancel the contract more than 23 weeks later when she was informed by an employee that the cabinets still had not been ordered. 6. While Respondent indicated in its response that Complainant wanted to wait until spring to complete the project, Respondent failed to address the repeated delays that preceded Complainant’s September 2012 statement that she did not want construction in her home during the winter months. 7. Respondent’s failure to complete the project as indicated in the contract was an abandonment of the contract. Thus, Complainant established 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). 8. The uncontroverted evidence established that Respondent violated A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158(B). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Phoenix Custom Builders LLC’s License No. C-61.240995-R unless the Registrar of Contractors receives and accepts written proof that Respondent has paid the principal sum of $7,375.00 in certified funds to Complainant. It is further recommended that if on or before the effective date of the final Order, Respondent provides acceptable written proof and the Registrar accepts such proof that Respondent has paid the principal sum of $7,375.00 in certified funds to Complainant, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Patricia J. Merritt’s Complaint in Case No. 2012-5422. It is further recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license until it has provided to the Registrar, and the Registrar has accepted, evidence establishing that it has amended its form contract to comply with A.R.S. § 32-1158(B). It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(B), the Registrar should not suspend Respondent’s license but, instead, shall close Complainant’s Complaint in Case No. 2012-5422. 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, June 19, 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