ALJDEC decisions subject to certification as final

07F-1424-ROC · Registrar of Contractors · 2007-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 11, 2007 APPEARANCES: Manuel Lopez, Vice President, appeared on behalf of the Complainant. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for hearing as scheduled. The Complainant was present and submitted evidence on the record. The Respondent failed to appear without good cause shown[1]. Findings of Fact 1. On or about July 21, 2006, the parties entered a contract whereby the Respondent would install Anderson Glass windows and doors at the Complainant’s business in Tempe, Arizona. 2. The contract price was $21,246.00. 3. The work was completed and the Complainant paid the contract price. 4. Subsequently, as a consequence of rain, leaks were found in various places where the windows and doors had been installed. 5. The Respondent made some minimal efforts to correct the problems but was unsuccessful. 6. The Complainant filed the Complaint with the Registrar of Contractors (ROC), on December 22, 2006. 7. On January 8, 2007, ROC Inspector Randy Cason (Cason) performed a jobsite inspection. The Respondent did not attend the inspection. 8. After water testing during the jobsite, Cason issued a Corrective Work Order (CWO) On January 9, 2007. The CWO required the Respondent to correct aluminum window and door frames which were improperly sealed, install trim at the front entrance door window, and to correct the northwest back entrance door with the cracked window. An addendum required the Respondent to level an exterior aluminum insert on the west wall. 9. The Respondent performed some corrective work but based on Cason’s pre- hearing inspection on October 10, 2007, the corrective work was not finished or satisfactory. Cason determined the eastside windows and door were still leaking, the window trim had been installed at the front entrance but there was a void in the top right corner, and the northwest back door had not been corrected. Conclusions of Law The Citation and Complaint alleges violations of A.R.S §32- 1154(A)(3)/A.A.C. R4-9-108, workmanship, (A)(7) a wrongful act with substantial injury, and (A)(23), failure to take appropriate corrective action. 1. The Complainants have the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.)[2] and A.A.C. R2-19-119. 2. A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990). 3. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. Although hearsay is admissible in administrative proceedings, the hearsay must be of a nature which would strongly indicate if not establish the information is accurate and reliable. 4. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 5. The Respondent failed to appear for the hearing and the evidence in this case is undisputed. The Respondent failed to properly install the windows and doors so they would not leak. The Respondent failed to properly correct the problems as required by the CWO. Given the facts of the case, the allegations set forth under (A)(3)/A.A.C. R4-9-108 and (A)(23) in the Citation and Complaint are proven by the preponderance of the evidence.[3] Recommended Order It is recommended effective on the date of the Order entered in this matter[4] that the Class K-65 license (no. 142524) of the Respondent shall be revoked unless the Respondent performs appropriate and satisfactory corrective work in compliance with the Corrective Work Order[5]. It is further recommended if the Respondent performs the corrective work as required by the Order entered in this matter that the Respondent’s K-65 license shall not be revoked.

Done this day, October 16, 2007

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] A telephone call to the Respondent confirmed the Respondent is still in business. [2] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [3] The charged violation under (A)(7) is duplicative in that it based on the elements in (A)(3) and (A)(23). In addition the “substantial injury” was not established [4] Forty (40) days from the date of the Order, or date of certification if certified by the Director of the Office of Administrative Hearings. [5] Absent some explanation for failing to appear and defend at the hearing, and absent mitigating evidence of record, it can only be surmised the Respondent is ignoring the Registrar’s jurisdiction and lawful authority.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826