ALJDEC (decisions subject to certification as fin)

03F-Y0027-ROC · Registrar of Contractors · 2003-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2003 at 1:30 p.m. APPEARANCES: The Complainants appeared through Warren Lancaster. Respondent Yuma Carpets (Corp.) (“Yuma”) appeared through its authorized representative, Terry McKivergan. Respondent Hall’s General Contractor LLC (LLC) (“Hall”) appeared through its authorized representative, Jeremy Caldwell. 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 Recommendations are made: FINDINGS OF FACT 1. These matters were consolidated for hearing since they involve the same subject matter and would necessarily involve the same witnesses and evidence. 2. Respondent Hall is the holder of a Class KB-02 License issued by the Registrar of Contractors. 3. Respondent Yuma is the holder of a Class C-48 License issued by the Registrar of Contractors. 4. This is a residential matter where the Complainants purchased a new residence constructed by Respondent Hall. Respondent Yuma performed construction work as the flooring and tile subcontractor for the residence. 5. The Complainants were dissatisfied with the color of the carpet, the color of the floor vinyl and the color of the bathroom tile surrounds and requested that all three be changed. 6. Communications between the parties broke down rapidly and the Complainants filed formal complaints against both of the Respondents. 7. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection. The assigned agency inspector found that the all of the complained items met minimum workmanship standards and declined to issue a corrective work order and moved to close the two complaints. 8. The Complainants disagreed with the inspector’s actions and requested a formal hearing. 9. Prior to the hearing the Respondents did perform corrective action in the Complainants’ residence and the only item presented as still being a matter of contention was the color of the tile utilized in the bathroom tile surrounds. 10. There was no dispute that the tile was installed in a workmanlike manner; the only item in dispute was the color of the tile. 11. Credible testimony and evidence, presented at hearing, established that the tile utilized in the tile surrounds was the type and color of tile selected by the Complainants and that the difference in appearance between the tile that was installed and the tile that was selected is a dye lot variation rather than a different color. 12. Credible testimony and evidence established that the color of the tile utilized the bathroom tile surrounds is within applicable industry tolerances and that no corrective action to the tile is required. CONCLUSIONS OF LAW 1. Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondents have 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. Complainants failed to sustain their burden of proof to establish that the Respondents 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 Respondents of the provisions of A.R.S. §32-1154A, as charged in the Citation. RECOMMENDATIONS In view of the foregoing, it is recommended that Citation Nos. Y03- 0026 and Y03-0027, together with the complaints upon which they are based, be dismissed. Done this day, April 16, 2003

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2003, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------