ALJDEC decisions subject to certification as final

2017A-4452-CHC-ROC · Registrar of Contractors · 2018-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Boone,

COMPLAINANT

v.

Cooney Carpentry, Inc. dba,

Exteriors,

License No: 204631, 227885

RESPONDENT.

No. 2017A-4452-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 18, 2018

APPEARANCES: Complainant Brian Boone appeared on behalf of himself. Greg Cooney appeared on behalf of Cooney Carpentry, Inc. dba, Exteriors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On December 7, 2017, the Registrar of Contractors, (“Registrar”), issued a

Notice of Hearing setting the above-captioned matter for hearing on January 18, 2018, by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Cooney Carpentry, Inc. dba, Exteriors, (“Cooney”)

holds license numbers 204631 and 227885 issued by the Registrar. Cooney’s qualifying party is Greg Cooney.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that Cooney may have violated

A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(1). The Citation shows that if the Administrative Law Judge finds that if the alleged charges are valid, the Registrar may suspend or revoke Cooney’s license.

On May 8, 2017, Cooney sent an electronic mail message (“e-mail”) to Complainant Brian Boone (“Mr. Boone”) that informed Mr. Boone that Cooney Carpentry had attached a construction proposal for a cabin for Mr. Boone’s review. See Exhibit 1. Cooney attached a budget proposal with the May 8, 2017 e-mail. See id.

On May 8, 2017, Mr. Boone responded to Cooney’s May 8, 2017 e-mail. See Exhibit 1. The e-mail provides, in relevant part, as follows: “Looks great can you clarity a few things. 1 Does this include T & G pine -ceiling 6” 2 Does this include driveway culvert 3 Does this include a gravel driveway 4 Is the floor of the deck all trex 5 Will your electrician mount gans and lights purchased by owner”. See id.

On May 10, 2017, Cooney sent an e-mail to Mr. Boone which provides, “Hi Brian, the cabinets we estimated are better quality. I have attached the contract for your review. We can move forward with the selections and changes after you review the contract.” Cooney attached a contract to the email.

On May 18, 2017, Cooney inquired with Mr. Boone by email whether Mr. Boone had a chance to review the contract. Mr. Boone responded that he reviewed the contract and “the payment schedule seems to be for another type of job and not a complete build could you look into that. I also had a few more questions below.

Mr. Boone listed a series of questions regarding whether the quote including heat and air conditioning.

Cooney and Mr. Boone met on May 30, 2017. Cooney provided Mr. Boone with a contract for the project. However, Mr. Boone did not sign the contract because Cooney did not provide Cooney with a payment schedule. Mr. Boone gave Cooney $2,500 to start clearing out trees where the cabin would be built.

On June 17, 2017, Mr. Boone sent Cooney an email which provides, “I also called you and left a VM. I would love to move forward however I just am unable to accept the contract as is. In your current draw schedule I would have paid you 61910.65 plus a 2500 deposit for excavation work guessing 5-6k +-worth of work. Then another 10% for a total of 89174.91 once I have a stem wall, the numbers are way too front loaded for me, if anything were to happen to you getting sick, hurt on the job etc. I would be bankrupt trying to finish. If this is the only option then please return he deposit and I will move to plan b, or if you wish to just do the framing you can send me a price for that With a lot and then a cabin that is free and clear of liens all the risk is on my end, I have spoke with contractors we use CORE, Chasse building team and McCarthy and they agree with my assessment. I absolutely want to be fair but all these costs up front no project completion date to hold you to I have no ability to get anything back should something happen to you I just don’t feel comfortable. Let me know your thoughts. Thanks, Brian.

On June 21, 2017, Cooney sent Mr. Boone an email which provides, “Hi Brian, The excavator is still ready to dig within a weeks notice. I was at the property yesterday and met with your neighbor Jack. I walked it again to get an idea on trees and utilities. I asked the subs for final #s based upon the plan you sent Wednesday. I don’t’ think anything will be different. I’ll be in the office tomorrow and shoot you an email with the detailed budget.

On June 26, 2017, Cooney sent an email to MR. Boone which provides, “Brian, I think this is an easy hurdle. We would like to move forward with the project. I don’t feel it’s unreasonable to ask for 15% up front on this. I think is important to understand that your concerns are valid but also consider mine. If anything were to happen over the coarse of the project such as serious injury to you, I would not be able to access those funds and ultimately costs, that my company is liable for, would continue to come. If the loan was secured by bank I would feel differently. I would be most comfortable in this case, if we opened an escrow account. As a business person, I also have to consider market factors that may effect your loan. I have to consider the fact that Desert school can reduce the loan amount anytime they want if the funds haven’t been used. Ultimately, I think it would benefit both party’s knowing that the funds are secure. If that were the case, I’d be willing take less upfront. ........ The budget we have is light based on what you have told me. It is in both of our interest for CCI to expedite the project. Once we have a signed contract, we will schedule the project with the subs and suppliers and set a completion date.

On July 17, 2017, Cooney inquired with Mr. Boone regarding whether he would be ready for framing the following week.

On August 8, 2017, Mr. Boone sent Cooney an email stating that he needed to move ahead with framing and alleged that he had several “un-returned” phone calls.

On August 10, 2017, Mr. Boone sent Cooney an email which stated, “Mr. Cooney, for the record I am doing my best to be patient and work with you however I don’t’ agree with your statement above other than me giving you a check for $2,500. Never did we discuss a non-refundable deposit no did I sign anything to that effect actually quite the opposite as I told you I did not agree with the terms of y our contract on 5/30/2017 and every other time that we talked about it. When in writing did you notify me of a final budget and proposal along with a contractor, triggering the 15 day period for you, the owner to present us with a signed contract” and where/when did I sign and agree with those terms: Your budget proposal on the 22 of June does not stat this and I have a text to you on June 23, telling you I did not feel comfortable with the draw schedule and you responded later with send me what you are comfortable with. I did communicate on our very first meeting 5/30 with my wife and Veronica present in your office that I would not pay you 15% or anything like that up front that what I was willing to do is pay you the $2,500 deposit and then pay directly for materials when you get started. I have not changed my position on this from our very first meeting. I also asked multiple times for a construction schedule with major milestones and completion dates which I -have never received.

Cooney filed a timely response to the Citation and Complaint.

At hearing, Mr. Boone testified that he never agreed to Cooney’s written contract. Mr. Boone testified that he gave Mr. Boone $2,500 to start clearing trees. Mr. Boone stated that he did not pay Cooney for a detailed budget.

Mr. Cooney testified that MR. Boone paid him $2,500 at a meeting on May 30, 2017 where he provided MR. Boone with a proposed contract, a detailed budget, fixture schedules and selections based upon the blue print that Mr. Boone provided to Mr. Cooney.

CONCLUSIONS OF LAW

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.

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).

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

[f]ailure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The preponderance of the evidence does not show that Cooney abandoned a contract. The weight of the evidence shows that the parties never entered into a contract for the construction of the cabin.

Therefore, the preponderance of the evidence does not show that Cooney Carpentry violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar close the Complaint in Case No. 2017A-4452.

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, February 7, 2018

Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors