ALJDEC decisions subject to certification as final

07F-F0217-ROC · Registrar of Contractors · 2008-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2008 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared, via telephone, through its president and qualifying party, Robert Spruiell (“Spruiell”). 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. Complainant filed the instant Complaint, alleging that the new siding installed on her home and detached garage was not completed in a proper workmanlike manner. In addition she also contends that the lattice work was also improper. She contends that Respondent was the contractor on the project and Respondent denies any involvement on said project. The facts surrounding this claim are discussed in the findings below.

2. Pursuant to stipulation of record, it was established that the new siding installed on Complainant’s home is substandard and unacceptable as manifested by, among other things, poor miter joints, holes and gaps, materials cut short, inadequate attachment, missing trim, out of level siding, inadequate siding laps, over-cuts at pipes and boxes, out of plumb and out of level boxes, wavy siding, improper staggering of siding joints, unevenly spaced corbels at the patio cover, and unfilled holes in the lattice.

3. Complainant believes that Respondent performed the work in question, since she dealt with an individual, Greg Clymer (“Clymer”), who appeared at her home in a truck with Respondent’s name on it, along with a large van with Respondent’s name and license number on it.

4. Although Clymer identified himself as being with Respondent, he requested that all payments be made in cash, except for one check issued by Complainant. The singular check was made payable to Clymer, not Respondent.

5. Evidence of record showed that all proposals submitted by Clymer, as well as all invoices, showed only Clymer’s name. Spruiell testified that all of Respondent’s business forms were pre-printed with Respondent’s name and Registrar of Contractors’ license number.

6. Spruiell testified that Respondent had nothing to do with this project. He had used the services for Clymer in the past but as of December 2005 he ceased using Clymer in his business and, in fact, stopped doing any business altogether. He claims that Clymer took his company truck and van without his permission and was apparently using same, while he (Spruiell) was out of town. When Spruiell arrived back in town he filed a police report about his missing truck and trailer.

7. Spruiell was found to be a credible witness. Thus, under all of the facts and circumstances presented herein, it is determined and held that the weight of the evidence of record supports a finding that Clymer was illegally passing himself off as Respondent, without any knowledge or authority from Respondent, at the time the work was performed on Complainant’s home. Complainant failed to sustain the requisite burden of proof to establish that Respondent is responsible for the activity of Clymer on Complainant’s siding project.[1]

CONCLUSIONS OF LAW

1. Complainant has 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. F07-0217), 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 15, 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 ___________________________

----------------------- [1] The Registrar of Contractors should institute an investigation into the past and current unlicensed activities of Clymer.

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