ALJDEC

00F-2631-ROC · Registrar of Contractors · 2000-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2000 APPEARANCES: Complainant : Stephen A. Padwe appeared at the hearing pro se. Respondent : Rich’s Roofing and Repair, Ltd. was represented by Carolyn Taylor, Corporate Secretary. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ The hearing convened as scheduled. Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent is in the business of roofing maintenance and repair doing business in the state of Arizona as Rich’s Roofing and Repair, Ltd., holding a Class C-42 license (Residential Roofing) issued by the Registrar of Contractors. 2. Complainant and Respondent entered into a written contract on October 1, 1998 whereby the Respondent contractor agreed to furnish material and perform services necessary to repair and maintain a residential roof upon property situated at 11812 N. 85th Street, Scottsdale, Arizona. In consideration for the work performed and materials provided, Complainant has paid in full a contract price of $1,860. plus $90.26 tax.

3. Mr. Padwe is the original owner of the subject home, the residence having been constructed in 1977, and has engaged Rich’s Roofing and Repair to service the roof at five year intervals since construction.

4. The work for which the parties contracted in October 1998 was completed on January 5, 1999. Respondent provided the following services: blow-cleaned the surface; swept stubborn areas; power washed the entire deck; applied to the surface an elastomeric coating; and, left the area free of debris. Respondent’s efforts carried a one year standard workmanship guarantee.

5. Having placed the subject home for sale and in the interest of the prospective buyer, Complainant arranged for an inspection of the building in March 2000. The inspection revealed the necessity for repair of open cracking in the roofing surface.[1]

6. Complainant seeks restitution of $1,400.00, an amount he alleges he was caused to negotiate down the sales price of the subject home in anticipation of reasonable and necessary expenses to repair the alleged deficiencies to the roof, which expenses the purchasers were required thereafter to assume and the repairs thereafter the purchasers would be required to undertake.

7. Respondent having refused to assume liability for the alleged deficiencies, Mr. Padwe filed a complaint with the Registrar of Contractors on May 11, 2000, alleging workmanship deficiencies. The Registrar issued a Citation and Complaint on June 15, 2000, citing alleged violations of A.R.S. ( 32-1154(A) (7) and (3).

8. No pre-hearing job site inspection was conducted by the Registrar of Contractors Inspector to whom this complaint was assigned. Apparently, this is so because the subject home had been sold and was then occupied by a new homeowner.

9. The weight and sufficiency of the evidence establishes that Respondent is not in violation of A.R.S. ( 32-1154(A) (3) and (7). Complainant has failed to demonstrate that the actions undertaken by the Respondent contractor in its relationship with this consumer was improper or that its acts or omissions resulted in a work product falling below workmanship standards.

CONCLUSIONS OF LAW 1. The evidence of record has not established that Respondent has violated that which is set forth at A.R.S ( 32-1154(A)(3) and (7); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). Proof by a preponderance 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). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case the Complainant, is more probably correct on the issue(s) in dispute.

3. By a preponderance of all of the evidence, Complainant has failed to establish that Respondent contractor violated A.R.S ( 32- 1154(A)(7) as charged in the Citation and Complaint. Complainant has failed to demonstrate that Respondent has committed a wrongful or fraudulent act thereby causing injury to Complainant. Therefore, by a preponderance of the evidence, Complainant has not established that Respondent contractor violated A.R.S ( 32-1154(A)(3) as charged in the Citation and Complaint. It has not been shown that Respondent has violated a rule for which the application of a disciplinary penalty is appropriate under these facts.

RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors dismiss Citation and Complaint 00-2631, there being no evidence of wrongful or fraudulent conduct by this contractor that has resulted in an injury to the Complainant herein. Set forth this 12th day of September in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

----------------------- [1] While Complainant successfully had the independent inspector served with a subpoena compelling attendance at the hearing, the individual failed to appear.

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