ALJDEC decisions subject to certification as final

07F-G1526W-ROC · Registrar of Contractors · 2008-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2008 APPEARANCES: Complainants appeared on their own behalf and Respondent was represented by its attorney, Michael Wright. 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. Complainants purchased new home construction. As part of the new home construction they selected granite to be installed on their kitchen countertops. They allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

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

a. Brad Goens (“Goens”), Respondent’s production manager appeared at the hearing and presented testimony. He indicated that the only license involved in the granite installation was Respondent’s K-05 license and that Respondent’s B- license was not used on this project. There was no evidence presented to contradict this assertion. Accordingly, there is no option but to dismiss the Citation and Complaint against Respondent’s Class B- license. b. Ban Khoshaba (“Ban”) testified at the hearing. According to Ban, the granite installed on the kitchen island is slippery and/or dull in finish. She further asserts that the granite is not like the sample they selected at the warehouse for the granite slabs or the finished sample that was shown on an employee’s desk. c. Ban also claims that there are highly visible scratches on a specified section of the main kitchen countertop. She also contends that the caulking on the backsplash does not properly match the countertop. d. Ban either wants her money back on the purchase price for the kitchen countertops or a new island countertop. e. Remon Khoshaba (“Remon”) also testified at the hearing. He testified that the kitchen island section of countertop shows fingerprints and agreed with his wife that it is slippery to the touch. f. After being unable to resolve the countertop issue with Respondent, Complainants filed the instant Complaint with the Registrar of Contractors. g. Upon receipt of the filed Complaint by the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors, who appeared at the instant hearing and presented testimony. h. The inspector testified that he conducted a jobsite inspection. Subsequent to concluding the jobsite inspection, he issued a Corrective Work Order (“CWO”). The CWO covered the three items of the Complaint. The CWO shows that the inspector found the finish on the countertop to be within appropriate standards for dark colored granite and on the issue of the caulking on the backsplash, he found it to be a typical color caulk to be used on the dark colored granite. He did order Respondent to abide by an agreement, reached at the jobsite inspection, to correct the complained of scratches on the countertop. i. The inspector conducted a pre-hearing inspection and determined that the scratches had been adequately corrected. Thus, he could find no deficiencies in the countertop installation or materials, as of the time of the pre-hearing inspection. j. Mel Purchase (“Purchase”), the customer service representative for the general contractor on the project appeared at the hearing and testified. Purchase indicated that granite is a god made natural stone and “no two (2) pieces are going to look the same.” He further indicated that is normal to have sealant applied to the granite. k. At the time of purchase and selection of the granite material, Complainants signed a document entitled “Stone Waiver and Slab Verification.” Among other things, this document addressed the fact that there are natural variations in granite and specifically that “customers should not expect the stone ordered to be identical to the picture or sample they were shown.” l. Complainants did not present any experts to testify on their behalf regarding the condition of the granite installed in their home.

3. The weight of the evidence of record was sufficient to support a finding that the granite countertops installed in Complainants’ home meet minimum industry standards for good and proper granite workmanship. Thus, Complainants 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. Complainants failed to sustain the 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. G07-1526 and G07-1526W), 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, January 23, 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