ALJDEC

00F-2307-ROC · Registrar of Contractors · 2000-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On July 21, 2000, at 9:00 a.m., a hearing was scheduled to determine if Respondent had violated provisions of A.R.S. §32-1154(A). Complainant, Gina Foroughi, appeared telephonically. Respondent, Roger’s Painting Company, was represented by its Superintendent, Secretary, and Treasurer, Harold Brown. Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made to the Director of the Arizona Registrar of Contractors. FINDINGS OF FACT On the morning of March 22, 2000, Respondent dispatched one of its employees to perform stucco repair and repainting at a home located in Complainant’s subdivision. The employee mistakenly performed the stucco repair on Complainant’s home, located at 3039 West Matthew Drive, Phoenix, Arizona, and not on the home that was supposed to be the recipient of the repair work. After he had finished with the front of the house, he rang Complainant’s doorbell in order to be given access to repair the stucco on the back of the house. When Complainant answered the door, the employee identified himself as an employee of Respondent. Complainant explained to the employee that no one had made an appointment with her and therefore asked him to leave. On March 22, 2000, Complainant contacted Respondent and was told by one of Respondent’s employees that Respondent was unaware of the above described events. Respondent informed Complainant that it would investigate the occurrence. On March 22, 2000, Complainant filed a criminal damage report with Phoenix Police regarding the above. On March 23, 2000, Complainant again contacted Respondent. Respondent admitted that it had sent one of its employees to Complainant’s house in error. Mr. Harold Brown testified that on March 23, 2000, Respondent offered to repaint the stucco repairs that had been performed in error, however, Complainant would not allow Respondent to do so until an inspection had been conducted by the Registrar of Contractors. Complainant filed a complaint with the Registrar of Contractors against Respondent on March 23, 2000. Mr. Brown testified that Respondent had scheduled an appointment with Complainant to perform repairs on March 30, 2000. However, Mr. Brown further testified that Complainant canceled that appointment on March 29, 2000. On April 6, 2000, Registrar of Contractors Inspector Joe Cotten conducted a jobsite inspection in response to the complaint filed by Complainant. On April 6, 2000, during the jobsite inspection, and in an attempt to satisfy Complainant, Respondent repainted the entire exterior of Complainant’s house with rollers, as opposed to simply touching up the patches. Inspector Cotten determined that all work performed by Respondent conformed to common industry practices and met or exceeded Registrar of Contractors minimum workmanship standards. Inspector Cotten opined that Respondent had simply made a scheduling error. Complainant indicated in her complaint dated March 23, 2000, that her home is new and that “in May/June 2000, some patching and repaint will need to be done.” Complainant received more than “some patching and repaint”, and only one to two months prior to when she was anticipating it would be accomplished. The undersigned Administrative Law Judge finds that Respondent went above and beyond what was required of it to rectify the error of patching the stucco on Complainant’s house. Complainant has received the benefit of a completely new coat of paint on her entire home, that she would otherwise not have received.

CONCLUSIONS OF LAW Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence.[1] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] The undersigned Administrative Law Judge concludes based upon the facts presented herein, that Respondent’s sole error was a scheduling mishap. It appears that its employee simply mistook Complainant’s address for one which was intended to be the recipient of the stucco repairs. This does not amount to a violation of the law. Further, Complainant was not harmed by Respondent, as evidenced by the benefit Complainant received in having her entire house repainted. The evidence fails to establish that Complainant has incurred any additional expense or has been substantially harmed by Respondent’s inadvertent error in scheduling. Therefore, there is an insufficient showing by Complainant that Respondent acted wrongfully or fraudulently within the meaning of A.R.S. §32-1154(A)(7). The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has not violated any of the provisions of A.R.S. §32-1154(A)(3), as charged in the Citation and Complaint. The evidence of record demonstrates that all work performed by Respondent conformed to common industry practices and met or exceeded Registrar of Contractors minimum workmanship standards Furthermore, “vandalism” is defined as “such willful or malicious acts as are intended to damage or destroy property.”[4] The undersigned Administrative Law Judge concludes, based upon the evidence presented, that Respondent made an inadvertent error, followed by a concerted effort to rectify such. Therefore, Respondent did not commit an act of vandalism.

RECOMMENDED ORDER Based upon the foregoing, the undersigned Administrative Law Judge recommends that Citation No. 00-2307, together with the Complaint upon which it is based, shall be dismissed. Done this day, August 7, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of August, 2000, to:

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

By ___________________________

----------------------- [1] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). [2] Morris K. Udall, Arizona Law of Evidence, (5 (1960). [3] Black’s Law Dictionary, 1182 (6th ed. 1990). [4] Black’s Law Dictionary, 1553 (6th ed. 1990).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826