ALJDEC decisions subject to certification as final

07F-2261-ROC · Registrar of Contractors · 2008-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 10 December 2007 APPEARANCES: Complainant: Rick and Janet Weiss. Respondent: None. Others: None. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A).

FINDINGS OF FACT 1. The above-entitled case was called to hearing at 1330, 10 December 2007 at the Office of Administrative Hearings in Phoenix, Arizona, pursuant to a duly promulgated Notice of Hearing issued to the parties on 2 November 2007, for the purpose of hearing Complainant’s allegations regarding Respondent. 2. Complainant testified that Respondent was contracted with Complainant to accomplish three construction tasks about Complainant’s home: First, build an in-ground drainage system along the house foundation in the backyard to drain away excess water that collected against the foundation when it rained; second, install 3” thick stone caps on several decorative columns and pillars around the outside of the house and entrance to the driveway; and third, install a drainage pipe through a wall adjoining the pool area to drain excess water that collected against the wall. 3. Complainant paid Respondent a total of $1700.00 for the work to be completed; a $1000.00 initial down payment, and $700.00 for materials. 4. Respondent began the house foundation drainage project, but did not finish it. Respondent installed the stone caps, but the caps were only 1” thick, and not the 3” thickness originally requested. Respondent drilled a hole and installed a pipe for drainage through the pool deck area wall, but the drainage pipe was installed so high on the wall that it does not drain the pool deck area adequately. 5. Respondent failed to appear and, consequently, no evidence was presented in support of Respondent’s case.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). Complainant presented a prima facie case at the hearing and, in the face of Respondent’s default, sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated certain provisions of ARS §32-1154(A), specifically subsections 1 and 13, by failing to adequately complete the work contracted for, and abandoning the project.

RECOMMENDED DECISION It is recommended that the ROC suspend Respondent’s K-31 class license until evidence satisfactory to the ROC is received by the ROC showing that Respondent has completed, or has caused to have completed, the work contracted for in this matter.

Done this day, January 7, 2008.

______________________________________ Maurice McWhirter Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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