ALJDEC decisions subject to certification as final

07F-H0194-ROC · Registrar of Contractors · 2007-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2007 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president and qualifying party, George Ripps (“Ripps”). 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 were the owners of a vacant lot, located in Kingman Arizona. They contend that Respondent caused damage to their lot, resulting in a monetary loss. Respondent denies the allegations asserted by Complainants. 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. Co-Complainant, Karyn Steffensen (“Karyn”) testified that on or about May 13, 2006 she was driving by her property and observed that the natural vegetation that had been growing on her vacant lot, had been cleared off of ½ of Complainants’ property and left on the edge of the property, piled near the roadway. b. Despite the fact that Complainants intended to construct a new home on this lot, they intended to leave much of the natural vegetation in place for landscaping of the lot. According to Karyn, the vegetation was not just weeds, but included yuccas, chollas, and cacti. c. Upon discovering that their lot had been cleared of the vegetation, without any authorization from her, Karyn became quite upset and commenced an investigation into the situation. She questioned the neighbors in the area, in order to determine if they could tell her who cleared the lot. Karyn testified that one of the neighbors indicated that the machinery that cleared the lot came from the adjacent lot. Nevertheless, this neighbor could not state what, if any, company name was on the machinery that performed the work. d. At the time of discovering that her lot had been cleared of the natural vegetation, Karyn also observed that Respondent had placed a sign on her property, advertising to build new homes. e. On the date she discovered the unauthorized clearing of her lot, Karyn immediately went to Respondent’s office to complain about the situation. Karyn testified that she met Ripps there and he denied knowing anything about the unauthorized clearing of her lot. f. Complainants eventually filed a criminal complaint with the local police department and entered into evidence the police report, as Complainants’ exhibit no. 2. The report is totally inconclusive in regard to any finding by the police as to whether Respondent was responsible for the clearing of the lot. The police interviewed an individual, Chiron McCall (“Chiron”), who admitted to clearing the lot, along with the adjacent lot. g. Notwithstanding the information about Chiron clearing both lots, there was no information in the report showing that Chiron had been employed by Respondent to perform this work. Moreover, the police report does not indicate that Chiron advised the police officer regarding who he had been working for at the time of the incident. h. Ripps testified that he never hired Chiron or anyone else, before the date of the incident, to perform any vegetation clearing work on either Complainants’ property or the adjacent property. Moreover, he testified that Respondent does not own the property located adjacent to Complainants’ property. i. Ripps did admit that Respondent had erred in placing its construction sign on Complainants’ property. According to Ripps, the placement of the sign was approximately two (2) feet off the location of the adjacent property. j. Complainants claim entitlement to monetary damages for the damage caused to their property. In this regard, they indicated that they paid $2,000.00 to have the debris that had been placed near the side of the roadway, hauled off their property. They also contend that they have received bids ranging from a high bid of $27,611.70 to a low bid of $16,844.00 to replace the lost vegetation. They have now constructed their new home on their property and want the vegetation placed back on the property for landscaping purposes.

3. The evidence of record was insufficient and inadequate to establish that Respondent was the party that directed Chiron to clear the vegetation off Complainants’ property. Thus, Complainants failed to sustain the requisite burden of proof on this issue.

4. Complainants did not present any evidence in regard to the charge that Respondent violated the provisions of A.R.S. §32-1124B.

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 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. H07-0194), 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, September 10, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

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