ALJDEC decisions subject to certification as final

2018A-05522-ROC · Registrar of Contractors · 2019-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2019, 9:00 A.M. APPEARANCES: Complainant Richard A. Hegyi appeared on his own behalf; Mayte Estrella, Owner/Manager, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Authentic Granite Creations, LLC, dba AGC (Respondent), is the holder of License Number 302196 issued by the Registrar of Contractors (Registrar). 2. On or about November 19, 2018, Richard A. Hegyi (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment by Respondent in connection with the installation of granite countertops at a residence in Tucson, Arizona. 3. After an inspection performed by the Registrar on December 14, 2018, the Registrar issued a Directive, dated January 15, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by January 31, 2019, as follows: Complaint Item 1: Jan, 29-2018. Homeowner put deposit on stone for fireplace. Feb 6, 2018. Homeowner paid balance on fireplace hearth stone. Fed 6-2108. Authentic granite picked up stone. July 20,2018 hearthstone was laid & small stone above fireplace. Authentic granite never return to finish. (Paid by barter). Jan 31, 2018 signed contract for granite counters & backsplash. Feb 5 2018 Met mayte at grab=nite –granite for final selection of slabs. Aug 28, 2018 Met Mayte at AZ tile at her request, we told her we are staying with our original slab selection called Santorini. Mayte assured us she had our slabs. (3) Sept 17, 2018. Met Mayte at granite-granite. They told me mayte only put down $500.00 deposit and was informed she would have to get the slabs within 30 days. Her deposit was returned to her in March, 2018. The slabs were sold shortly after. Sept 17, She suggested to look for slabs somewhere else. Sept 18 told mayte we wanted out down payment back and to meet with us at our home, she said yes, but never kept the appointment and refuses to communicate with us.

Complete work or refund for countertops

4. After observing that Respondent did not complete corrective work, the Registrar then issued a Citation to Respondent, dated May 7, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusing to perform without legal excuse for the abandonment); b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar issued a Notice of Hearing, setting a hearing for May 16, 2019, at 9:00 A.M. At the hearing, Complainant Richard A. Hegyi testified on his own behalf and presented the testimony of Pamela Hegyi and Mike Detula; Mayte Estrella, Owner/Manager, testified on behalf of Respondent. Michael Springer (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 13.[1] 6. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. He stated he performed a compliance and pre-hearing inspection and observed that the countertops had yet to be installed. He further stated that this matter is in large part a monetary dispute but that he could not ascertain if Respondent had returned any funds to Complainant due to Complainant’s credit card charge dispute. 7. Complainant Richard Hegyi testified that he picked out the granite for countertops from a third party at a cost of $6,700.00. He stated that Respondent put down a $500 deposit to hold it and that he was told by Respondent that the deposit would secure the granite choice. He further stated he then proceeded to look for cabinets and other granite but decided to go with his original granite selection. He testified that when he decided to go with his original granite choice, he was told that one of the two slabs he had chosen had been sold to another customer. He further testified that he paid $8,400.00 to Respondent on his credit card, that he had disputed the charges with his credit card company, and that the full amount was returned to him back in March 2019. He thus admitted that he had paid nothing to Respondent. He further stated he then picked out new granite at Cactus Stone but later cancelled it when he became aware that it was only two centimeters thick. 8. Pamela Hegyi testified on behalf of Complainant that Respondent did their fireplace as part of a barter where Respondent would take possession of Complainant’s vanity and light fixtures. She also testified that Complainant received the money he had paid Respondent. 9. Mike Deptula testified on behalf of Complainant that he was the store manager of Granite Granite, who was to supply the granite that Complainant had initially chosen. He stated he contacted Respondent when another customer was interested in the slab chosen by Complainant and told Mayte that she had to either buy the slabs on hold or Granite Granite would sell them to another customer. He stated he did not hear from her so he sold one of the two slabs selected by Complainant in May or June 2018 to another customer. 10. Mayte Estrella, Owner/Manager of Respondent, testified on behalf of Respondent that the contract with Complainant was for a fireplace, modification of cabinets, and installation of kitchen counter tops. She stated that Complainant ultimately informed her that his air conditioning unit had broken and that he asked for his money back to fix the unit. She said she told him that she had done some work that she should be paid for, but communications then broke down and Complainant filed the subject complaint. She further stated that the granite chosen by Complainant was not resold until March 2019. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119. 3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. …

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar…. 5. A.R.S. § 32-1154(A)(1). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(1) for Respondent’s alleged abandonment or refusal to perform work without a legal excuse. It is apparent that Complainant no longer wanted Respondent to complete any work once the granite selected by Complainant was resold to another customer. Further, Complainant requested that all monies he paid to Respondent be returned to him, which ultimately in effect happened through his disputing Respondent’s charge to Complainant’s credit card Thus, there was insufficient evidence to show that Respondent abandoned or refused to perform work and even if there was, Respondent was excused by Complainant’s actions and the return of the monies to Complainant. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. The Directive stated that Respondent complete the work or return amounts paid to Complainant. The evidence was uncontradicted that all amounts paid to Respondent were returned to Complainant. 7. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint shall be dismissed. 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 five days from the date of the certification. Done this day, June 4, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s document submissions to the Arizona Office of Administrative Hearings.

-----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826