ALJDEC decisions subject to certification as final

07F-2124-ROC · Registrar of Contractors · 2007-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 30, 2007 APPEARANCES: Complainants appeared through Co-Complainant, Evelyn Moore (“Moore”) and Respondent appeared through its installation manager, Don Meinke (“Meinke”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainants retained Respondent to replace all of the windows in their home. The windows are dual pane and the front bay window exterior side glass shattered. Complainants contend that Respondent should be responsible to replace the window glass. Respondent disagrees and the facts surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Moore testified that she heard the window shatter in the middle of the night. She found no evidence of foul play. However, she could not provide any evidence of what caused the window glass to shatter. b. Moore contends that she was never advised, prior to purchasing the windows, that there was no warranty for broken glass. c. Meinke testified that Respondent does not provide a glass breakage warranty on its windows. Meinke could find no problem with the installation of the window and believes that the breakage is consistent with something hitting the window glass. d. Subsequent to filing the Complaint with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors, who appeared at the instant hearing and provided testimony. e. The inspector conducted a jobsite inspection and was unable to determine any cause for the broken glass. Therefore, he issued a Registrar of Contractors’ form RC-C-007, indicating that the case should be closed.

3. The evidence of record was insufficient to support any finding of a contracting law violation by Respondent. Complainants failed to sustain the requisite burden of proof necessary to establish their claim.

CONCLUSIONS OF LAW

1. Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. 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).

2. Complainants failed to sustain his burden of proof to establish that 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

Based on the foregoing, it is hereby recommended that this Citation (no. 07-2124), together with the Complaint upon which it is based, be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, October 30, 2007.

______________________________________ Mark A. Silver 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826