ALJDEC

98F-1912-ROC · Registrar of Contractors · 1998-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 1998. APPEARANCES: David Wolf, Complainant, appeared on his own behalf. Nicholas Charles Cassaro, Respondent, doing business as The Wright Fire Protection Systems and holder of class C-16 license number 102323, 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 (“Registrar”). 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. David Wolf, Complainant, resides at 6560 East Orion Street, Mesa, Arizona. 2. Nicholas Charles Cassaro, Respondent, does business as The Wright Fire Protection Systems and is holder of class C-16 license number 102323. 3. This matter arises out of an oral contract for the installation of a residential fire protection system that Respondent entered with Complainant in January 1998. Respondent expected to complete the installation within two weeks or so. 4. The preponderance of the evidence establishes that Respondent agreed to install the fire protection system in Complainant’s residence for the sum of $2,100.00. Complainant paid Respondent this amount by check, which Respondent cashed. 5. The preponderance of the evidence also establishes that Respondent prepared plans for the project and submitted them to the City of Scottsdale, which then approved them in late January 1998. Respondent also delivered 15-30 sticks of pipe to Complainant’s residence for installation. 6. The preponderance of the evidence further establishes that, during the last week of January 1998, Respondent informed Complainant that he would not complete the installation and offered Complainant a refund of $350.00. Complainant refused the partial refund and demanded a refund for the total sum he paid on the contract, $2,100.00. 7. Dissatisfied with Respondent’s refusal to complete the project or refund $2,100.00, Complainant filed a Complaint with the Registrar in February 1998. In the Complaint, Complainant charges that Respondent abandoned the project without legal excuse. 8. During the hearing in this mater, Complainant and Respondent relied mostly upon their own individual testimony in presenting their positions. Unfortunately, there was little consistency or agreement between their testimony. The preponderance of the evidence reveals that the parties’ relationship deteriorated between the time the contract was consummated and Respondent informed Complainant he would not complete the installation. Complainant pressured Respondent to begin installation of the fire protection system before the plans were approved and Respondent delayed what efforts he could take towards installation prior to approval of the plans. Indeed, the evidence convinces this Judge that the relationship between the parties deteriorated, because of both parties, to the point that neither was acting within the spirit of their agreement. 9. The preponderance of the evidence demonstares that the reasonable value of Respondent’s plans for the project is $300.00 and that the reasonable value of the pipes Respondent delivered to the project is $300.00. Accordingly, Complainant is entitled to a refund of $1,500.00.

APPLICABLE LAW Arizona Revised Statutes (“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.

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. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” 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, 654 (9th Cir. BAP (Ariz.) 1994). 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). 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged abandonment of the project without legal excuse, Complainant fails his burden of demonstrating a violation of §32-1154A(1). However, Respondent’s failure to remit a refund to Complainant, under the circumstances of this matter, is a wrongful act pursuant to §32-1154A(7); Respondent owes Complainant a refund in the amount of $1,500.00.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that, commencing on . . .

. . . the effective date of the final order entered in this matter, the Class C- license of Respondent be suspended if Respondent fails to remit to Complainant the sum of $1,500.00. If Respondent remits such sum to Complainant before the effective date of the final order entered in this matter, the suspension shall not take place and the Citation and Complaint shall be closed. Done this day, August 25, 1998.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, 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