ALJDEC decisions subject to certification as final

07F-2125-ROC-res · Registrar of Contractors · 2008-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 7, 2008 APPEARANCES: Complainant appeared through its owner, Peter Marshall (“Marshall”) and Respondent appeared through its owner and qualifying party, Chuck O’Brien (“O’Brien”) 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 Complainant retained Respondent to remove the existing paint finish on the floor, in one of the rooms located in Complainant’s establishment. Marshall contends that Respondent’s work created a large dusty mess in the other areas of the restaurant and this mess constitutes a violation of the State’s Contracting laws. 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. Marshall testified that the restaurant was closed during the period of time that Respondent performed its work on the project. Respondent performed the work on December 31, 2006 (New Year’s Eve Day). b. According to Marshall, he asked Respondent to make sure that all the doorways and other openings leading to the room in question be covered with plastic, in order to cut down on the spread of the debris that would be created by Respondent grinding off the existing floor coating. Marshall admits he was not present while Respondent’s work was performed and thus, could not state what precautions, if any, Respondent took to cut down on the dust problem. c. After the project was completed by Respondent and Marshall returned to the jobsite, he claims that the dust created by Respondent’s work was all over the restaurant and excessive. It led him to conclude that Respondent failed to place any tarp or plastic over the openings leading to the room where the work was performed. d. According to Marshall, he, his wife, and an employee of Complainant spent 1 ½ days cleaning up the mess. Based on their work to remove the dust debris, Marshall deducted $401.25 from the final billing from Respondent, based on his calculations for the reasonable hourly rate for the clean-up by himself, his wife, and the employee. Marshall did not pay the bill until almost sixty (60) days after the project was completed, since those were the original payment terms of the contract. e. Marshall testified that when he discovered the mess on New Year’s Day, he attempted to contact Respondent several times and got no response to his phone calls. f. O’Brien testified that the first he heard about the complaint was when he received the payment for the job, some sixty (60) days after completing same. Thus, he had no opportunity to respond to the complaint. g. O’Brien further testified that all openings to the room where the work was performed were, in fact, masked off with plastic to reduce the amount of debris that would go into other parts of the restaurant. According to O’Brien, the main problem was that the air conditioner was running while Respondent performed its work. The work in question does create a massive amount of dust type debris and it got into the ventilation system because the air conditioner was running. O’Brien had no clue as to how to turn off the air conditioner and when he called Marshall on New Year’s Eve Day to have it turned off, he was unable to make contact with Marshall. h. Evidence of record showed that Respondent filed a civil lawsuit against Complainant for the balance due on the contract. The claim was filed in the Kyrene Justice Court, in case no. CC2007074432, and resulted in a judgment in favor of Respondent for the amount of $300.00, plus court costs. Thus, the judgment was $100.00 less than the full balance withheld by Complainant on the final payment.

3. Notwithstanding the fact that the above-described court case gave Complainant some small allowance for any time and effort that may have been involved in cleaning the restaurant after Respondent completed its work on the project, it does not adequately establish that Respondent had committed any violation of the State’s Contracting laws.

4. The work in question was shown to be a rather messy project, due to the manner in which the paint needed to be removed from the floor. The weight of the evidence of record was sufficient to support a finding that Respondent took all reasonable measures to cut down on the amount of dust debris that would be strewn around the restaurant, but there was only so much that said precautionary measures could accomplish, especially in light of the fact that the air conditioner was running. Moreover, Respondent never had an opportunity to view the debris before it was cleaned-up and make its own decision whether or not it was at fault. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have remedial work performed prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work.

5. Under all of the facts and circumstances presented herein, Respondent was not shown to have committed any act which would constitute a violation of the spirit and intent of the State’s Contracting laws. Complainant failed to sustain the requisite burden of proof on this issue.

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. Complainant 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. 07-2125), 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, April 14, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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