ALJDEC decisions subject to certification as final

06F-T1206-ROC · Registrar of Contractors · 2007-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 28, 2007, at 1:30 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Mark Belyan. The Respondent appeared through its authorized representative, William Dohrmann. 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 B-01 License issued by the Registrar of Contractors. 2. This is a commercial matter where the Respondent constructed a “neighborhood” shopping center. After various tenants occupied the completed shopping center the new tenants noticed that portions of the asphalt parking lot appeared to be failing and the Complainant filed the Complaint at issue. . 3. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. The assigned Agency Inspector moved to close the Complaint on the following basis: “The asphalt installed by the Respondent appears (to be) installed properly per contract specifications and approved drawing details. The asphalt inspection and the testing information provided by the Respondent at the jobsite is in compliance with specifications and industry standards. I am therefore unable to confirm any defect in the Respondent’s workmanship resulting in the ruts in the asphalt about which this Complaint was filed.” 4. The Complainant disagreed with the Inspector’s action and requested an administrative hearing. 5. There was no dispute that portions of the asphalt have failed and do display rutting. 6. Credible testimony and evidence, presented at hearing, established the majority of the rutting is occurring where front end trash trucks have been used to collect the refuge from the various tenants and that the weight of the trash trucks together with the weight of the metal trash containers and trash have caused portions of the asphalt to buckle or rut. 7. Credible testimony and evidence, presented at hearing, established the damage to portions of the asphalt has been accelerated by one of the tenant’s use of cleanser and water to clean grease from the tenant’s loading dock. 8. Credible testimony and evidence, presented at hearing, established the asphalt parking lot was constructed in accordance with applicable plans and specifications and the local building authority found that it complied with all applicable code requirements. 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 its 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 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 that 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, March 7, 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 ___________________________

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