ALJDEC

01F-2553-ROC · Registrar of Contractors · 2001-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2001 APPEARANCES: Susan Gunn, Complainant, in her own behalf John Rowland, Qualifying Party, on behalf of the corporate Respondent

ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for hearing at the time, date and place set forth in the Notice of Hearing. The parties were present and witnesses sworn. Aside from the Complainant and Respondent, the only other witness was Inspector Mel Purchase from the Office of the Registrar of Contractors. During the course of the proceedings, a specific issue was raised by the Complainant (the issue will be discussed in more detail later in this Recommended Order). The issue is of suspect relevance and the evidence is of questionable reliability. In addition, there was question of whether the issue was part of a prior settlement and whether there was adequate notice to the Respondent that the issue would be the subject matter of the instant hearing. The Complainant was dissatisfied with the explanation by the Administrative Law Judge (ALJ), of the problems attendant to the issue she was raising, as well as the fact that certain documents in the hearing file were not considered competent evidence without being properly introduced. She was also upset with the testimony of Inspector Mel Purchase (Purchase). This resulted in the Complainant becoming angry, accusatorial and leaving the hearing, thereby abandoning her cause. For the purpose of allowing the Registrar to make an informed decision, the following findings and conclusions are presented based on the evidence which was submitted during the hearing. Findings of Fact 1. The Complainant’s home in Phoenix, Arizona, is also a youth hostel. 2. In June, 1999, there was a fire causing severe damage at the Complainant’s home. 3. The estimate of the fire damage was done by Don Johne (Johne), Property General Adjuster of Statewide Adjusting, Inc. (Statewide). 4. According to the Complainant, Johne referred her to the Respondent to obtain an estimate and to do the necessary repairs of the home. 5. The initial cost of repairs was in the neighborhood of $44,500.00. The Complainant received approximately this amount or possibly a little more from her insurance company, to cover the initial repairs. 6. The repairs were not completed in August, 1999. The roof was not dried in and the Complainant was concerned about the potential for interior water damage since it was the monsoon season and storms are generally expected. 7. According to the Complainant, the Respondent did not address her concerns about rain damage (this was stated as an accusation during the hearing and no competent testimony was presented on the issue). In any event, within 48 hours of the Complainant allegedly stating her concerns, there was significant water damage to the interior of her home as well as some of the Complainant’s personal property, during a monsoon storm. 8. According to the Complainant, the adjuster told her not to complain about the additional loss because it was covered by insurance as an “Act of God”. The Complainant received approximately another $10,000.00 from her insurance company but much of the damaged personal property was not included in the coverage. The evidence was unclear as to how much of this money went to the Respondent to do additional repairs as a consequence of the leakage. 9. Sometime after the above events, the Complainant filed a complaint against the Respondent with the Registrar. According to Inspector Purchase, the complaint concerned workmanship issues. The Respondent apparently made a claim against the Complainant for money which was owed. During the job site inspection by Purchase, the parties entered negotiations and a verbal settlement. Purchase closed the case. The specific terms of the settlement are not a matter of this record. 10. On April 23, 2001, the Complainant filed the instant complaint with the Registrar. The complaint states “After settlement, roof leaked, Mel Purchase inspected same area started re-leaking on eve of 21st April ‘01”. 11. Purchase did a job site inspection on May 9, 2001. Based on the inspection and a letter from the adjuster, Purchase determined that the area of the roof which was the subject of the most recent complaint, was not an area which had been repaired by the Respondent and was not part of the fire damaged area which was covered by insurance. 12. The Complainant did not agree with the decision by Purchase and requested the instant hearing. 13. At approximately the same time (May 9, 2001), after having checked some Registrar records, the Complainant discovered and submitted to Purchase, an unsigned letter (Complaint Letter-received by the Registrar in 1998), a copy of which is in the hearing file, and alleged certain acts (specifically an open roof leaking problem in the summer), attributable to the Respondent. Conclusions of Law The allegations in the Citation and Complaint concern A.R.S. §32- 1154(A)(2), departure or disregard of plans, (A)(3) violation of any rule, specifically A.A.C R4-9-108 relating to workmanship, and (A)(7), a fraudulent or wrongful act with substantial injury to another person. 1. At the time of the instant hearing, the Complainant alleged that the Respondent was negligent in failing to dry in her roof during the rains in August 1999. She asserted that the unsigned 1998 Complaint Letter to the Registrar showed that the Respondent was responsible for the same roof leaking problem at that time and therefore the fact that the Respondent allowed it to happen to the Complainant, was tantamount to proof of her assertion of negligence and therefore her case, irrespective of the fact that the initial complaint had been settled. 2. The Complainant also intimated that the Respondent and the adjuster had entered some kind of an agreement to intentionally allow the rain damage in order to obtain the additional insurance proceeds. This allegation was not pursued by the Complainant. 3. The Complainant appeared to wish to present her case based primarily on accusations rather than bringing forth or eliciting competent testimony. She attempted to argue with the witness (Purchase), as well as the ALJ whenever she was confronted with an answer or explanation she found disagreeable. 4. The issue which the Complainant attempted to raise was not fully addressed at the hearing because the Complainant absented herself from the hearing. However, the conclusions are that the 1998 Complaint Letter upon which the Complainant apparently relies so heavily, is of no evidentiary value. Aside from the fact that the law does not favor trial by analogy (If he did it once he did it again), the 1998 Complaint Letter is the worst type of hearsay. The author is not identified. It is readily seen that the author is accusatory and has a complaint which impacts on the objectivity of the facts asserted in the letter. Given these hearsay objections, the fact that the author aside from being unknown, is not under oath or subject to cross examination, becomes almost secondary. Since the letter as presented is given no evidentiary value, there is no basis to consider it as a basis for allowing presentation of an issue which was settled by the parties, of which there was no notice to the Respondent, and which is merely an accusation which was not accompanied by an impartial determination of the facts or law. 5. The Complainant presented no evidence that the Respondent was responsible for the area on the roof which was the subject of her second complaint. 6. Based on the facts and conclusions as presented above, the Complainant made no showing that any of the allegations of the Citation and Complaint can be sustained. In an administrative hearing, the Complainant has the burden of proving the case by a preponderance of the evidence, Culpepper V State, 187 Ariz. 431 (App. 1996). A.A.C.R2-19-119 requires the party asserting the claim, right or entitlement to bear the burden of proof. It is the Complainant who is asserting the violations which have been charged and it is the Complainant’s burden to prove the case by a preponderance of the competent evidence. The burden includes making a proper evidentiary presentation and not merely making general accusations. Recommended Order In view of the foregoing and in light of the fact that no competent evidence was presented to sustain any of the allegations contained in the Citation and Complaint, it is recommended that the Citation and Complaint upon which it is based, be dismissed. Done this day, November 1, 2001

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this 8th day of November, 2001, to:

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

By ___________________________

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