ALJDEC

01F-T0191-ROC · Registrar of Contractors · 2001-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 21, 2001; at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class C-41 License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a residential lot where the Respondent had performed a “buying” percolation test. 3. After the Complainant purchased the residential lot, she had a “construction” percolation test performed on the property. The “construction” percolation test had different results than the “buying” percolation test performed by the Respondent. 4. The county building authority informed the Complainant that it would not approve a conventional septic system on the residential lot and that an alternative type of system would be required before a building permit could be issued. 5. The Complainant testified that she is unable to afford the installation of an alternative septic system and is unable to build a residence on the lot which she purchased specifically for that purpose. 6. The Complainant notified the Realtor, which sold the lot to her, and the Respondent of her dissatisfaction. When the Respondent declined buying the residential lot from her, the Complainant filed a formal complaint against the Respondent’s License. 7. The Realtor also filed a formal complaint (T00-0782) against the Respondent. Because of the date of the filing of the Complainant’s complaint, the matters were unable to be consolidated for hearing. The hearing for the Realtor’s complaint has already occurred and the Order has been issued by the Registrar of Contractors. 8. The facts of both the complaint at issue and the complaint in Case No. T00-0782 are essentially the same. 9. Credible evidence established that the Realtor contracted with the Respondent for the performance of a “buying” percolation test on a residential lot. The Respondent performed the requested “ buying” percolation test. 10. The “buying” percolation test indicated that the lot would percolate. The Complainant then purchased the lot and had to have a “construction” percolation test performed on the lot prior to the installation of a conventional septic system on the lot. 11. The “construction” percolation test had different results from the “buying” percolation test performed by the Respondent and the Complainant is unable to install a conventional septic system on the lot. 12. The Complainant testified that she believes that the Respondent misrepresented the percolation condition of the residential lot because the “construction” percolation test established that the residential lot will not percolate to applicable specifications and that she would not have purchased the lot except for the results of the “buying” test performed by the Respondent. 13. Credible evidence established that the Realtor contracted with the Respondent for the performance of the “buying” percolation test on the residential lot and that the Respondent performed the requested type of percolation test. 14. There was no credible evidence that the performance of the “buying” percolation test violated any workmanship or industry standards. 15. There was no dispute that the “construction” percolation test came up with different results than the “buying” percolation test. However, credible evidence also established that a “construction” percolation test is more extensive and accurate and expensive than the type of “buying” percolation test performed by the Respondent. 16. There was no credible evidence presented to establish that the Respondent either falsified or misrepresented the results of the “buyers” percolation test that the Respondent performed. 17. Credible testimony established that the Respondent informed the Realtor of the difference between the two different types of percolation tests and recommended that the more extensive “construction” percolation test be performed. The Realtor knowingly elected to have the less expensive and less accurate “buying” percolation test performed. 18. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent has violated the charged sections of the State’s Contracting Laws. See: Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that it 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). “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.” Black’s Law Dictionary, 1182 (rev. 6th ed. 1990). 2. The Complainant failed to sustain her burden of proof to establish that the Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore the credible evidence of record does not sufficiently sustain a finding of violations by the Respondent of the charged provision of A.R.S. §32-1154 (A), as charged in the Citation at issue. RECOMMENDED ORDER In view of the foregoing, it is recommended that Citation No. T01- 0191, together with the complaint upon which it is based, be dismissed. Done this day, March 2, 2001.

________________________________ M. Douglas Administrative Law Judge

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

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488