ALJDEC decisions subject to certification as final

06F-S0202-ROC · Registrar of Contractors · 2007-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 23, 2007, at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Les Boegemann. 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 Recommendation are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class K-53 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed construction work on a shared well located on the Complainant’s property. There was no dispute that the well was shared between the Complainant and an individual identified as Clarke Richards. 3. Credible testimony and evidence, presented at hearing, established that on or about November 28, 2005, the Respondent replaced a submersible pump in the shared well. 4. On or about April 9, 2006, the pressure tank for the shared well stopped working and the Complainant called the Respondent. The Respondent declined to accept the Complainant’s telephone calls based upon the difficulty the Respondent had in obtaining payment for its past construction work for the Complainant. 5. Clarke Richards then contacted the Respondent and contracted with them for the replacement of the failed pressure tank and Mr. Richards then paid the Respondent. 6. Clarke Richards then presented the invoice to the Complaint for the Complainant to pay his share of the cost of installing the pressure tank. 7. There was no dispute that approximately one week after the installation of the new pressure tank Clarke Richards turned pressure up to approximately 70 psi following a conversation with the Complainant. 8. Shortly after the pressure was turned up the Complainant experienced a problem with the shared well. 9. The Complainant then had the pressure in the pressure tank professionally readjusted to below 70 psi and caused a compression coupling to be replaced. The Complainant then presented an invoice to the Respondent and demanded payment for his alleged damages. 10. When the Respondent refused to comply with the Complainant’s demand, the Complainant filed the Complaint at issue with the Registrar of Contractors. 11. At the onset of the hearing, during the hearing, and at the conclusion of the hearing the Respondent’s counsel moved to have the Complaint at issued dismissed based upon the Complainant’s alleged lack of standing and the fact that there was no privity of contract between the Complainant and the Respondent. 12. There was no dispute that the Complainant owns a shared interest in the water well at issue and that the well is located on the Complainant’s real property. The Complainant is found to have standing to file the Complaint at issue. 13. There was no dispute that there was no contract between the Complainant and the Respondent. 14. Credible testimony established there is no requirement that a contractual relationship between the parties exists in order to file a Complaint with the Registrar of Contractors. 15. The Complainant had corrected the alleged problems with the shared water well prior to the filing of the Complaint at issue so there was no onsite inspection and no Corrective Work Order was issued. 16. There was no dispute that Clarke Richards, the other owner of the shared well, is fully satisfied with the Respondent’s workmanship on the shared well. 17. Credible testimony and evidence, presented at hearing, established the alleged problems with the shared water well could have been caused by any number of things other than the Respondent’s workmanship on the shared well. 18. There was no credible evidence that the Respondent had failed to perform its work in a professional and workmanlike manner. 19. 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 the 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). 2. 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). 3. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the State’s Contracting Laws. 4. The credible testimony and evidence, presented at hearing, ailed to sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation and Complaint.

RECOMMENDED ORDER In view of the foregoing it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, February 23, 2007.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

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

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488