ALJDEC decisions subject to certification as final

2022A-01510-CHC-ROC · Registrar of Contractors · 2022-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory Wayne Brueckner,

COMPLAINANT

Unique Flooring LLC,

License No. ROC 296426,

RESPONDENT

No. 2022A-01510-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 13, 2022

APPEARANCES: Complainant Gregory Wayne Brueckner appeared on his own behalf. Victor Arguello, Owner and Qualifying Party, appeared on behalf of Respondent Unique Flooring LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Unique Flooring LLC (Respondent) is the holder of License No. 296426 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 30, 2021, Gregory Wayne Brueckner (Complainant) entered into a contract with Respondent for the fabrication and installation of three slabs of material for a total contract price of $7,525.00. The contract indicated the cost of the materials was $4,725.00 and the labor cost was $2,800.00. Complainant paid a $4,800.00 deposit at the time of the contract.

The contract included the following provision:

This Serves As A Contract. All Sales Are Final. No Refunds On Special Order Material Or Material Only Orders. A 65% Deposit Is Required Upon Signing Contract. Granite/Quartz Installation Is 10-12 Weeks Out . If You Are Issued A Refund It Will Be Given Within 30 Business Days. Final Payment is Due On Job Completion, If Not Paid Within 2 Days You Will Aquire Late Fees. No Plumbing Or Electrical Work Is Done By Supreme Stone.

Respondent’s contract identified Respondent as “Supreme Stone” while the name on Respondent’s license was Unique Flooring LLC.

Respondent’s contract did not include Respondent’s correct name, license number, an estimated date of completion, or an advisement that the homeowner had the right to file a complaint with the Registrar.

On or about December 2, 2021, Respondent deposited Complainant’s check.

On or about December 2, 2021, the funds were debited from Complainant’s account.

On or about December 6, 2021, Global Stone Imports generated an invoice for the three slabs of material to Respondent for a total cost of $3,204.31. Global Stone Imports had a policy of holding materials for a period of 10 days after selection to allow time for payment to be made. After the 10 days, the materials could be sold to a different customer.

Respondent advised Complainant that the bank had put a two-week hold on Complainant’s check and that, while it may have cleared his bank, it had not cleared Respondent’s bank or been deposited into his account.

Undated text messages indicated Complainant was concerned that the materials would be released and he would not be able to use the materials he had selected. Complainant was assured that Respondent had a relationship with the individuals at Global Stone Imports and that “Patty” would not sell the slabs out from under Respondent.

By an undated text message, Complainant requested a refund. Initially, Respondent indicated that he would be able to get a refund via certified check.

On or about December 17, 2021, Complainant texted Respondent indicating that the two-week hold would have expired the previous day and he wanted a cashiers check for the return of his deposit.

By undated text messages, Respondent explained to Complainant that, because the slabs were special order, the deposit would not be refunded. Respondent indicated it would pay for the slabs and Complainant could contract with a different fabricator to complete the project.

Complainant argued that Respondent had not paid out any funds at that point and it could just return the money to Complainant.

On or about December 17, 2021, Respondent issued a check to Global Stone Imports to pay for the three slabs of material. The check bounced.

On or about December 21, 2021, Respondent paid cash for to Global Stone Imports for the three slabs of material.

On or about February 23, 2022, the Registrar received an Unlicensed Complaint Form against Respondent from Complainant alleging Respondent was not licensed and had broken the contract.

The Registrar assigned the complaint to Investigator Cliff Corlett.

On or about March 14, 2022, Investigator Corlett issued an agency letter to the Respondent with a 10-day response deadline. Investigator Corlett was not advised the matter had been resolved by March 24, 2022.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(14); and A.R.S. § 32-1154(A)(22).

Investigator Corlett testified that he did not issue a written directive, so the alleged violation of A.R.S. § 32-1154(A)(22) was not applicable in this matter. Investigator Corlett stated that the name on the license had been changed to reflect the name Respondent was operating under.

Complainant testified that Respondent should not be allowed to keep profits for work it did not perform. Complainant argued that Respondent paid Global Stone Imports only $3,204.31 for which Complainant paid Respondent $4,800.00.

Mr. Arguello testified that the materials Complainant selected were considered special order items because they were not in Respondent’s stock. Mr. Arguello stated that it was beyond his control how long it took Complainant’s check to clear Respondent’s bank and he paid for the materials as soon as possible.

Ms. Arguello testified that Respondent had corrected its form contract to comply with the statute and had changed the name on the license with the Registrar. Ms. Arguello asserted that once Complainant cancelled the contract by requesting a refund, the contract became a “Materials Only Order.”

Administrative notice is taken of Respondent’s prior License record on July 12, 2022. Such prior License record reflects that Respondent’s License No. 296426, issued to Unique Flooring LLC, doing business as Supreme Stone, was first issued on March 6, 2015, and is current. Such prior License record also reflects that there were no other open complaints and two prior complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears 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 Vazzano 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).

The evidence failed to establish that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid without legal excuse. Complainant advised he wanted a refund, effectively cancelling the contract at that point. However, the terms of Respondent’s contract provide that special order materials were nonrefundable. While Complainant believed Respondent should not make a profit for work it did not perform, Complainant is not entitled to the special order material at a wholesale price simply because he cancelled the contract before the work could be performed. Accordingly, Complainant failed to establish that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent was operating under the name Supreme Stone while its license was issued to Unique Flooring LLC; however, the license has since been updated to reflect that Respondent is doing business as Supreme Stone. Therefore, Complainant established that Respondent was acting in the capacity of a contractor in a name other than as set forth on the license in violation of A.R.S. § 32-1154(A)(14), but that the matter has been fully resolved with the Registrar.

The evidence established that the Registrar did not issue a written directive, therefore Respondent did not fail to comply with a written directive in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, It is recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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.

-54864001

001

-137160-45720000Done this day, July 13, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

001

-137160-45720000