ALJDEC decisions subject to certification as final

06F-Y0205-ROC · Registrar of Contractors · 2007-03-13

HEARING: March 2, 2007, at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Asuncion Reynoso. A Spanish/English speaking interpreter was present for the hearing. 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- License issued by the Registrar of Contractors. 2. The Complainant purchased a new residence constructed by the Respondent. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to his satisfaction despite repeated demands that it do so. 4. 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. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: “Complaint #1: Separation between concrete sidewalks, stem walls and excessive cracks in control joints. Contractor to correct by appropriate method. Complaint #2: Access to attic mechanical systems blocked by duct work. Contractor to correct by appropriate method. Complaint #3: Cracks in front of garage concrete. Repaired prior to inspection. No action required by contractor.” 7. The Complainant acknowledged that the Respondent had performed corrective work on the items set forth in the Corrective Work Order but denied that the items had been properly corrected and requested an administrative hearing. 8. The assigned Agency Inspector conducted a pre-hearing inspection prior to the hearing. 9. The Inspector testified that he had performed a pre-hearing inspection and found the terms and conditions of the Corrective Work Order had been substantially complied with. 10. The Registrar of Contractors does not apply perfection standards when judging workmanship. The standard, as applied by the Registrar, is whether the workmanship involved is within applicable industry standards for good and proper workmanship. Credible testimony and evidence, presented at hearing, established the Respondent had substantially complied with the terms and conditions of the Corrective Work Order and the complained of items have been corrected to within applicable industry tolerances. 11. 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. Credible testimony and evidence established the Respondent has complied with the terms and conditions of the Corrective Work Order issued in this matter. Therefore, the 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 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 9, 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