ALJDEC decisions subject to certification as final

07F-G0235-ROC · Registrar of Contractors · 2007-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 20, 2007 APPEARANCES: The Complainant represented himself. Walter Gottschall Jr., President, represented the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The toilet at the Complainant’s home was backing up. 2. On June 27, 2006, the Respondent went to the Complainant’s home and cleared the toilet with a closet auger for $131.97. The Respondent also signed the Complainant up for an annual Executive Club membership[1] at $6.00 a month. 3. On July 3, 2006, the Complainant’s toilet had a broken “pull valve”. The Respondent replaced the fill valve, Douglas valve, the tank to bowl gasket, tank bolts and gaskets, tank lever and cleaned the ports around the bowl[2]. The charge to the Complainant was $322.39. 4. A few weeks after the above repairs the Complainant again had back up problems with the toilet. The Respondent unclogged the blockage. 5. The parties discussed the for need for a new toilet. According to the Respondent, the Complainant was told his toilet was working satisfactorily but that if the Complainant wanted a new toilet, the Toto Drake was the best flushing and used less water. The cost of the Toto Drake was $808.00 installed but the Respondent would give the Complainant credit for the $322.39 in previous repairs bringing the cost to the Complainant to approximately $485.61 6. On August 9, 2006, the Complainant filed the Complaint with the Registrar of Contractors. The Complainant seeks to have some of his money returned. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32-1154(A)(7) a wrongful act with substantial injury, and (A)(9) failure to complete a project for the price stated. 1. The Complainant has the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.)[3] 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. 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 Complainant did not present any evidence that the toilet problems were attributable to the Respondent’s failure to complete the work or the failure to perform the work adequately.[4] There is no proven violation of (A)(9). 6. The Complainant seeks a return of some of the money he paid to the Respondent but did not present any evidence that the work done by the Respondent was unnecessary or how much money the Complainant is was entitled to. 7. The Administrative Law Judge (ALJ) considered the amount charged by the Respondent for the actual work done to be highly suspect if not exorbitant[5]. However, it is a free market economy, and the Complainant presented no evidence of what would show a reasonable cost (or unreasonable cost) for the work done by the Respondent. Absent such evidence, the record will not support a conclusion that the Respondent took advantage of the Complainant and overcharged him to the extent that the charges were unreasonable on their face and constituted a wrongful act with substantial injury. There is no proven violation of (A)(7). Recommended Order It is recommended the Citation and Complaint upon which it is based be dismissed. Done this day, March 20, 2007

______________________________________ Allen Reed Administrative Law Judge

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

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

----------------------- [1] An annual maintenance and prevention program for the water heater, water valves, toilets and sinks. [2] There is no evidence whether or not the toilet required the various items replaced by the Respondent. [3] 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. [4] Clogged or backed up toilets can have various causes such as depositing improper refuse, too much paper, an obstruction in the line to the sewer, etc. [5] Based on the ALJ’s personal experiencing in fixing his own toilets. The ALJ is not a witness to these proceedings and the personal experience does not constitute evidence.

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