ALJDEC

02F-T0267-ROC-RES · Registrar of Contractors · 2002-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 2002; at 8:30 a.m. APPEARANCES: The Complainant appeared through her attorney, Dennis A. Rosen. The Respondent, Dalco Development Inc., appeared through its attorney, Norman R. Freeman. 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. This matter was originally scheduled for a consolidated hearing with the Complainant’s more extensive complaint against the general contractor for her residence. The complaint against the general contractor had to be continued. The matters were then separated and each matter was heard separately. 2. Respondent Dalco Development Inc. (Corp) is the holder of a Class C-36 License issued by the Registrar of Contractors. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work to her satisfaction despite her request that it do so. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors. 4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection. The assigned agency inspector did not issue a written corrective work order in this matter.

5. There was no dispute that the Respondent did install exterior lath and plaster on a masonry wall below the existing dirt grade. The parties were in sharp dispute as to whether the Respondent’s construction work complied with applicable industry standards and code requirements. 6. The Complainant asserts that the installation of exterior lath and plaster below the dirt line is in violation of applicable plans and specifications and that it fails to comply with the applicable provisions of Section 2506 of the Uniform Building Code. 7. Credible evidence established that, prior to any work by the Respondent, the general contractor became dissatisfied with perceived inaccuracies in the blueprints for the residence and “fired” the architect that designed the Complainant’s residence. The general contractor then made all decisions regarding the correct “interpretation” of the approved plans and specifications. 8. Credible evidence established that the Respondent bid its work after an onsite visit to the residence where the general contractor instructed the Respondent as to exactly what construction work the Respondent was to perform. The Respondent then bid the project based upon the general contractor’s specifications. 9. Credible evidence established that the Respondent performed its construction work under the on-site direction of the general contractor and that the exterior lath and plaster was applied to the residence in accordance with the general contractor’s directions. 10. There was no credible evidence that the Respondent either knew or should have known that the general contractor’s directions may not have been consistent with the approved plans and specifications. 11. There was insufficient credible evidence presented to support a finding that the Respondent’s actions in installing exterior lath and plaster on a masonry wall below the dirt line violated any applicable workmanship standards or code requirements. 12. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent 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 Respondent violated the applicable charged sections of the State’s Contracting laws. The credible evidence of record did not sufficiently sustain a finding of violations, by the Respondent, of the provisions of A.R.S. §32-1154A, as charged in the Citation. RECOMMENDED ORDER In view of the foregoing, it is recommended that Citation No.T02- 0267, together with the complaint upon which it is based, be dismissed. Done this day, April 25, 2002.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of April, 2002, to:

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

By _______________________________

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