ALJDEC

97F-L0231-ROC · Registrar of Contractors · 1997-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 1997. APPEARANCES: Faye J. Silvius appeared on her own behalf. Harry Goodwin, Respondent, doing business as Blue Water Urethane and holder of Class B license no. 118799, appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Faye J. Silvius, Complainant, resides at 601 Beach Comber, #339, Lake Havasu City, Arizona. 2. Harry Goodwin, Respondent, doing business as Blue Water Urethane, is

holder of Class B license no. 118799. 3. On January 13, 1997, Complainant asked Respondent for an estimate to wash and apply polyurethane foam to her home’s roof. Respondent submitted a business form to Complainant entitled “Estimate.” The form has written on it some notations respecting the services Complainant requested. Respondent testified during the hearing in this matter that he gave Complainant no price for the services nor terms of payment. However, the form notes the sum of $539.00 for the work, including tax. 4. In early February 1997, Respondent power washed Complainant’s roof; had his insurer fax documents to the property manager to prove coverage; and obtained a release from the property manager for Complainant’s signature. Respondent also visited Complainant’s home later that month to discuss the roof with Complainant, as well as Complainant’s options in providing electricity to the site for Respondent’s equipment. Complainant confirmed that she could rent equipment that would resolve the electricity problem. 5. On or about March 25, 1997, Respondent informed Complainant that he changed his mind about the job and decided not to proceed to perform the services Complainant requested. Respondent cited the electrical issue and difficulties applying the foam given the AC drip pans on the roof. Respondent never addressed the issue again. 6. Gary Burton, an employee of the property manager and the individual who dealt with Respondent, testified during the hearing as well. Mr. Burton testified that the property manager required homeowners and contractors to comply with certain requirements before engaging in any contracting activity in the development. He also stated that he understood Respondent to have undertaken the task of servicing Complainant’s roof, because Respondent complied with the property manager’s requirements before starting any work. This Judge finds Mr. Burton’s testimony credible. 7. On or about April 8, 1997, Complainant filed a Complaint with the Registrar, asserting Respondent’s refusal to comply with his obligations pursuant to a contract. 8. On April 25, 1997, after reviewing the matter with Complainant, Bill Spence, Inspector for the Registrar, issued a Corrective Work Order (“CWO”) ordering Respondent to “complete the job as agreed by appropriate means.” The evidence demonstrates that Respondent refused to comply with the CWO. The evidence also demonstrates, however, that Respondent’s contention that no binding contract exists between the parties has merit, even though it is ultimately unsuccessful in this matter.

APPLICABLE LAW A.R.S. §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take 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 written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and refusal to perform without legal excuse, Complainant sustains her burden of demonstrating violations; that is, Complainant demonstrates sufficient evidence that Respondent violated both A.R.S. §§ 32-1154A(1) and A(7). In challenging the Complaint, Respondent argues that there was no mutual assent between the parties concerning job; that is, that there was no binding contract. Complainant argues to the contrary. The law favors enforcement of contracts. Arok Const. Co. v. Indian Const. Services, 174 Ariz. 291, 297, 848 P.2d 870 (Ariz. App. 1993). Only when essential terms of an agreement are so uncertain that there is no basis on which to decide whether an agreement has been breached does a contract not exist; other wise, courts will supply an omitted term, even one “essential” to a contract. Arok Const. Co., 174 Ariz. at 298. In other words, the standard for contract enforceability is not whether the agreement includes a resolution of every matter and anticipates every contingency, but whether the terms provide a basis for determining the existence of a breach. Id. focusing on mutual assent in particular, mutual assent is based on objective evidence. Hartford v. Industrial Com’n of Arizona, 178 Ariz. 106, 112, 870 P.2d 1202 (Ariz. App. 1994. Here, Respondent gave Complainant an estimate on the job. Respondent then performed a number of acts consistent with him agreeing to render the services Complainant requested. Accordingly, the evidence establishes that a binding agreement between the parties existed. Respondent breached the agreement when he failed to perform the agreed services. 4. With respect to Respondent’s alleged failure to take corrective action without justification, Complainant fails to sustain her burden of demonstrating a violation.

RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing twenty (20) days after the effective date of the final order in this matter, that Respondent‘s Class B license, No. 118799, be suspended. It is further recommended that Respondent have an opportunity to avoid suspension of his license. If Respondent complies with the CWO issued in this matter before the expiration of twenty (20) days after the final order’s effective date, then no license suspension shall take place and the instant Citation and Complaint shall be closed. Done this day, November 13, 1997.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826