ALJDEC decisions subject to certification as final

2012A-6207-ROC · Registrar of Contractors · 2013-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9, 2012, at 8:00 a.m. APPEARANCES: Ralph and Judy Bauer (hereinafter “Complainants”) appeared through Judy Bauer. Phoenix Custom Builders LLC (hereinafter “PCB”) failed to appear. 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 PCB is the holder of License No. C-61.240995-R issued by the Registrar of Contractors. This is a residential matter where Complainants entered into a construction agreement with PCB for the remodeling of Complainants’ kitchen.[1] PCB agreed to install new quartz countertops and stainless steel sinks in Complainants’ kitchen for the total sum of $6,550.00. On April 25, 2012, Complainants paid $3,275.00 to PCB as a down payment for the agreed-upon construction project.[2] On May 19, 2012, PCB’s installer performed measuring work at Complainants’ residence and prepared a template for the new kitchen countertops. On June 13, 2013, PCB informed Complainants that the new quartz countertops had been damaged during shipment and that the installation date would be rescheduled within one week. Judy Bauer (hereinafter “Mrs. Bauer”) testified that PCB repeatedly promised Complainants that the construction project would start soon. Mrs. Bauer stated that PCB informed her that construction work would start at Complainants’ residence as soon as PCB’s insurance company paid for the damaged quartz countertops. Mrs. Bauer testified that when PCB failed to return to their residence to complete the construction project, Complainants repeatedly tried to reach PCB. Mrs. Bauer stated that Complainants were unable to contact PCB during the month of July 2012. Mrs. Bauer testified that Complainants finally issued a demand letter on August 9, 2012, informing PCB that Complainants wanted the construction project completed or their money returned by August 30, 2012.[3] When PCB failed to comply with Complainants’ demand letter, Complainants filed a formal Complaint against PCB with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, the Registrar of Contractors issued a Citation and Complaint charging PCB with possible violations of A.R.S. § 32-1154(A)(1)[4] and A.R.S. § 32-1154(A)(13),[5] namely, A.R.S. § 32-1158(B)(4) and (9).[6] Mrs. Bauer testified that Complainants never saw any countertops. Mrs. Bauer stated that PCB failed to perform the agreed-upon construction work and refused to return Complainants’ money to them. Mrs. Bauer testified that Complainants received nothing for the $3,275.00 that they paid PCB. Mrs. Bauer stated that PCB was an unprofessional and unethical contractor. Administrative notice is taken of PCB’s prior license record as reflected on the Registrar of Contractors’ public website on July 18, 2013. Such prior license record reflects that License No. C-61.240995-R of PCB was revoked on April 30, 2013. License No. C-61.240995-R of PCB was suspended until compliance on March 29, 2013, and suspended from January 12, 3013, through January 28, 2013, for lack of bond. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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. PCB furnished no materials and performed no construction work at Complainants’ residence. PCB refused to return Complainants’ down payment to Complainants, despite repeated demands that it do so. PCB abandoned the construction project leaving Complainants with nothing of value for the money that Complainants paid to PCB. This Tribunal concludes that PCB violated the charged provision of A.R.S. § 32- 1154(A)(1). 4. The written construction contract prepared by PCB did not contain an estimated date of completion for all of the work to be performed under the contract. The written contract prepared by PCB failed to inform Complainants that they had the right to file a written complaint with the Registrar of Contractors for an alleged violation of A.R.S. § 32-1154. This Tribunal concludes that PCB violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158(B)(4) and (9). RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 61.240995-R of PCB shall be revoked on the effective date of the Order entered in this matter. 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, July 19, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. C-4 (4/25/12 Contract). [2] See Exhibit No. C-3 (Copy of 4/15/12 check to PCB for $3,275.00). [3] See Exhibit No. C-5 (August 5, 2012 letter to PCB). [4] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [5] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [6] 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: . . . . 4. The estimated date of completion of all work to be performed 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.

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