ALJDEC

99F-0024-ROC - audit · Registrar of Contractors · 1998-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 1998.

APPEARANCES: Complainant appeared in her own behalf.

Respondent appeared through its owner and qualifying party, Robert Joseph Petrone.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The evidence revealed that Robert Petrone, Respondent’s owner and qualifying party, after several discussions with Complainant with respect to designs and contemplated landscaping installations, presented Complainant with a written proposal to perform certain specified work on the premises for a total cost price of $2,175.00. This proposal was duly accepted by Complainant on June 24, 1998, thereby ripening into a contract, and Complainant paid Respondent the sum of $1,087.50, representing an advance deposit of one-half of the contractual price.

2. The contemplated work consisted of the providing and installing by Respondent of a 3-zone sprinkler system, a drip irrigation line, a brick border around a

lawn area and a free-form concrete patio. Although the worksheet attached to the contract document which described the above-mentioned features to be installed did not specify the use of rebar or stitching between the existing patio slab and the new free-form slab, it became clear from the testimony at the hearing that the parties’ mutual understanding was that the quoted and accepted price did NOT include any rebar placement or connection which, if provided, would have entailed additional costs.

3. The next day, June 25, 1998, Complainant placed a telephone call to the offices of Respondent and asked to speak with Mr. Petrone to again discuss the omission of a rebar or stitching connection for the new slab and to indicate her preference and desire, based upon the receipt of advice from others, to utilize a rebar connection between the slabs as part of the contracted work. Mr. Petrone was not made available for any conversations with Complainant who was obliged to discuss her requests with one of Respondent’s employees. The topic of extra cost was not discussed during Complainant’s conversation with such employee who reportedly became rude while ultimately rejecting any proposed modification of the slab installation work and while reporting to Complainant that Respondent was considering the entire agreement as canceled.

4. A day later, on June 26, 1998, Respondent’s owner returned the identical uncashed payment check previously received from Complainant, confirming in the transmittal letter that the contract arrangement was canceled.

5. Complainant’s telephone inquiry is found to have been coupled with a request or demand that the work specifications be amended or modified so as to include a rebar connection between the old and new patio slabs. Credible testimony tended to establish that Respondent’s owner had determined and had communicated from the outset that his company would not undertake the project with a rebar connection, since he felt that its installation would imperil the stability of the existing concrete slab, and Respondent did not wish to risk any liability for damaging such existing slab.

6. Complainant was not shown to have ever communicated her willingness to allow the project to proceed without any rebar connection or to have agreed to pay any

stated extra costs for such manner of installation. In point of fact, no definitive monetary sum for inclusion of rebar was ever established. Respondent’s ongoing position of not being willing to utilize rebar was consistently asserted.

7. Complainant arranged for the performance of all desired work though another licensed specialty contractor. The evidence was largely inconclusive with respect to whether the costs ultimately quoted by, invoiced by and paid to a successor landscaping contractor or contractors were higher that the contractual sum set forth in the parties’ agreement. Aside from the use of connecting rebar, numerous other upgrades, such as the providing and installing of sod, renders a monetary cost comparison difficult if not impossible at this time. In any event, Complainant was unable to adequately demonstrate that she was substantially damaged by Respondent’s withdrawal and cancellation action.

8. Complainant’s communicated preference and desire to implement a change to the previously agreed specifications on the patio installation is determined to have been the equivalent of a counter-proposal or a requested change order which Respondent was free to accept or reject. If the originally specified contract terms were still desired, the response received from Respondent’s employee should have generated, at the minimum, a confirmation by Complainant either that her requested change was withdrawn or that the portion of the parties’ agreement relating to the slab was to be deleted. Absent any such confirmation, the prompt rejection from Respondent’s employee effectively terminated the prior agreement with justification.

9. Even assuming a willingness on the part of Respondent to delete the patio slab portion of the overall project, since there was never a cost breakdown for the various component elements described in the parties’ original agreement, no self-operative cost reduction would be applicable. The parties would have been obliged to negotiate an adjusted price to reflect the deletion of part of the specified contractual work, in which event Respondent would have remained entitled either to refuse to adjust the prior cost price which had been calculated based upon performance of the entire quantity of specified work or to reject any counterproposal to delete a portion of the originally contemplated work.

10. While nothing in this decision is intended to condone any rude or inconsiderate treatment received or perceived from individuals employed by licensed contractors during the course of their business dealings with customers, neither the Registrar of Contractors nor the Office of Administrative Hearings are appropriate forums in which to monitor or insure that the general public will receive polite and courteous treatment, a concept that becomes highly subjective and one that should not form the basis for administrative disciplinary action against a license holder.

CONCLUSIONS OF LAW

1. No violations of the State’s contracting laws, as charged hereunder, were sufficiently proven against Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number 99-0024 be dismissed.

Dated: December 23, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

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