ALJDEC

00F-H0206-ROC · Registrar of Contractors · 2000-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 2000 APPEARANCES: Complainant : Richard Scholz, Attorney at Law, represented the homeowner; Witness Cheryl Johnson, QMC Property Management, Inc.; Witness Susan Franklin, QMC Property Management, Inc. Respondent : Randy Gray, Qualifying Party; Witness Robert Hamon, Mohave County Building Inspector. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ 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 constructing residential homes doing business in the state of Arizona as RANDY GRAY, holding a Class B- license (General Residential Contractor) issued by the Registrar of Contractors.

2. Respondent entered into a written contract in 1997 with a resident of North Hills, California whereby the Respondent contractor agreed to furnish material and perform services necessary to construct a house at 2097 E. Desert Lakes Drive in Fort Mohave, Arizona. Construction was completed in November 1998. Due to various considerations unrelated to Respondent’s performance in the construction of the home,[1] the property was sold to Complainant herein.

3. Complainant filed a complaint with the Registrar of Contractors on February 25, 2000 that has resulted in the Registrar’s issuance of a Citation and Complaint on May 24, 2000. The complaint cited certain alleged workmanship deficiencies, several of which items have been corrected by the Respondent contractor.

4. There remain six items concerning which Complainant has, through alternative contractors, addressed the alleged deficiencies and seeks reimbursement therefor. The items at issue include: 1) electrical work/GFI outlet required rewiring ($45.); 2) roof tiles improperly installed ($425.); 3) cover for attic crawl space fabricated ($137.35); 4) screens for the windows and sliding glass door ($436.02); 5) planter and lattice work on the side of the home had to be replaced ($167.28); and 6) replacement/repair of cock hole cover and ice maker valve ($44.80).

5. Respondent was unable to rebut the testimony of Complainant’s agents that the GFI repair/replacement was necessary due to faulty workmanship. Respondent’s witness could not address the issue from personal knowledge and, at best, testified from faulty memory, or complete lack thereof, and added no weight to Respondent’s articulated position on this or any other issue. Respondent is liable for the cost of repair ($45.).

6. Respondent failed to rebut the evidence offered by Complainant that the roofing tile was partially deficient in construction. However, Complainant did not establish that Respondent is liable for all of the deficiencies noted by Complainant’s alternative subcontractor and therefore is entitled only to a portion of the cost of repair thereof ($212.50).

7. The weight and sufficiency of the evidence establishes that all other enumerated items of the complaint were found either to have been corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW 1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (7) and (3), specifically, Rule R4-9-108 (Workmanship Standards). However, as there was no Corrective Work Order issued giving notice to Respondent of the necessity for repair and/or replacement, there is no (23) violation.

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 established that Respondent contractor violated A.R.S ( 32-1154 (A) (3) as charged in the Citation and Complaint. Certain (relatively minor) aspects of the construction of the home failed to meet workmanship standards, namely, the GFI outlet at issue and the roof tiling.

4. Therefore, by a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful act resulting in injury to another person.

5. Respondent’s failure to effect a repair of the deficiency of which he had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B- license be suspended on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent pays a sum of $257.50, on or before the effective date of the Order, the suspension should not be put into effect and the file closed.

Set forth this 26th 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] The buyers simply became disenchanted with the move.

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