ALJDEC decisions subject to certification as final

06F-S0225-ROC · Registrar of Contractors · 2007-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19, 2007, at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Pat Alley. 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-48 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed new flooring, including carpet and tile, in the Complainant’s residence. 3. There was no dispute the cost of the new tile was the sum of $2,437.50. 4. Within a few months of moving into his new residence the Complainant became unhappy with the appearance of the tile floor in his residence. 5. The Complainant complained to the Respondent and the Respondent notified the manufacturer. The Respondent and manufacturer originally offered to remove and replace the Complainant’s tile floor. 6. The parties were unable to resolve the difficulties inherent in removing and replacing a tile floor in an occupied residence and the parties then entered into a Settlement Agreement wherein the tile manufacturer paid the Complainant the sum of $4,000.00 instead of removing and replacing the tile floor. 7. There was no dispute that the Respondent also performed installation and corrective work on the Complainant’s tile shower. 8. The Complainant was dissatisfied with the Respondent’s workmanship on his tile floor and the tile shower and failure to correct its work to his satisfaction despite repeated demands that it do so. 9. When the Respondent failed to comply with the Complainant’s demands the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 11. The Agency Inspector moved to close the case on the following basis: “The Complainant failed to show sufficient evidence of a violation by the Respondent.” 12. The Complainant disagreed with the Inspector’s action and requested an administrative hearing. 13. There was no dispute that the parties entered into a Settlement Agreement for the tile floor and the Respondent and the tile manufacturer gave the Complainant a check for $4,000.00 instead of removing and replacing the Complainant’s tile floor. 14. The parties did not have a written Agreement, did not utilize any type of written waiver and now are in sharp dispute regarding the terms and conditions of their Settlement Agreement. 15. The Complainant asserts the $4,000.00 was only for the slight color variation of the floor tile and it did not include any complaints regarding the Respondent’s workmanship in the floor tile installation. 16. The Respondent asserts the $4,000.00 settlement was in complete settlement of all claims for the floor tile including all workmanship issues. 17. The evidence of record adequately demonstrated a dispute between the parties regarding the terms of their Settlement Agreement. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith; therefore, precludes a finding that the Respondent is responsible for any further corrective work on the Complainant’s tile floor. 18. the parties’ dispute regarding the terms of their settlement having been found to be a good faith dispute, which may necessarily involve the possibility of the return of the $4,000.00 previously paid to the Complainant, is found to be a dispute which will involve a monetary adjudication and which should be resolved, if at all, in a civil court of competent jurisdiction. 19. Credible testimony and evidence, presented at hearing, established the Respondent’s tile work on the Complainant’s shower is within applicable industry and workmanship tolerances. No corrective action by the Respondent is found to be required.

CONCLUSIONS OF LAW 1. Until and unless any claimed obligation under the terms of the parties’ disputed settlement agreement is reduced to judgment by a civil court of competent jurisdiction, no violation by Respondent of the provisions of A.R.S. § 32-1154 A can be supported for the Complainant’s claims regarding the workmanship on his tile floor. 2. The credible evidence of record was insufficient and failed to support a finding that the Complainant’s tile shower failed to comply with applicable industry and workmanship standards. 3. 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). 4. 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). 5. The Complainant failed to sustain his burden of proof to establish the Respondent violated the applicable charged sections of the State’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by 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 this Citation, together with the Complaint upon which it is based. 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, January 26, 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