ALJDEC

01F-1855-ROC · Registrar of Contractors · 2001-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2001. APPEARANCES: Complainant did not appear. Respondent was represented by its attorney, Aaron Kizer, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The commencement of the scheduled hearing was delayed for 15 minutes to allow for the late arrival of the Complainant or an attorney authorized to represent him. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant did not present any evidence at the hearing in support of his allegations that the Respondent violated the State’s contracting laws as cited in the Citation and Complaint issued by the Registrar of Contractors. 2. Respondent was the general contractor responsible for the installation of landscaping at Complainant’s residence. That work was completed on or before December 8, 1999. 3. At the hearing, counsel for the Respondent made an oral motion to dismiss the Citation and Complaint for the reason that the Complainant’s landscaping complaint of grass and/or weeds in his rocks was filed beyond one year from the date of the landscaping installation. Pursuant to the State’s minimum workmanship standards for landscaping, Respondent was the responsible party for correcting any grass and/or weeds in Complainant’s rocks for a period of one year from the date of installation. A review of the complaint supports a finding that Complainant’s complaint was filed with the Registrar of Contractors beyond the one year period following the installation of the landscaping and, therefore, any grass and/or weeds found to be in Complainant’s rocks after that one year period are homeowner maintenance items rather than Respondent’s responsibility.

CONCLUSIONS OF LAW

1. The burden of proof generally at the administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App.1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 706, P.2d 756 (App. 1985). Complainant, by his default in appearance at the hearing, failed to sustain his burden of proving that the Respondent violated the provisions of A.R.S. § 32- 1154(A)(7) and (3); namely Rule R4-9-108. Complainant’s failure to meet his burden of proof supports the dismissal of the Citation and Complaint in this matter. 2. The State’s Minimum Workmanship Standard for Licensed Contractors provides that a licensed landscaping contractor should correct grass and weeds growing in rocks within the first year of installation. Respondent has made a credible offer of proof that Complainant’s complaint concerning grass and weeds in rocks was made beyond Respondent’s one year from installation period of responsibility. Respondent’s motion to dismiss should be granted and it provides additional grounds for the dismissal of the Citation and Complaint in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s motion to dismiss be granted and that Citation and Complaint in this matter be dismissed for the reasons set forth in the above-provided Conclusions of Law. Done this day, September 12, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

-----------------------

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