ALJDEC decisions subject to certification as final

07F-M1185-ROC · Registrar of Contractors · 2007-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2007

APPEARANCES: Complainants were represented by their attorney, Mark Hanson and Respondents were represented by their attorney, Rick Sherman. 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 contend that Coating Solutions (“Coating”) is responsible for the deficient concrete coating that was installed on their property. Coating denies responsibility for said project and the facts surrounding this claim are discussed in the findings below.

2. At the outset of the scheduled hearing, the parties stipulated that the concrete coating installed on Complainants’ property is deficient and therefore, indicative of substandard and unacceptable workmanship.

3. The parties further stipulated that the Class C-05 license of Prestige Garage had absolutely nothing to do with this Complaint and any Citation issued against that license should be dismissed.

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

a. Meryl Schmitz (“Meryl”) appeared at the hearing and presented testimony. According to Meryl, she and her husband attended a “home show” and went to Coating's information booth at the show. There they met with Coating’s employee, Daniel Apolinar (“Daniel”) and inquired about having a concrete coating installed on their property. Daniel and Complainants agreed to meet at Complainants’ home for the purpose of providing an estimate for concrete coating work. b. When Daniel met Complainants at their home, he gave them a verbal estimate of $3,300. He arrived at the home, in one of Coating’s trucks, which showed Coating’s name on the truck. c. According to Meryl, Daniel advised that if he was paid in cash, he could start the job immediately. This appealed to Complainants, since they were trying to fix-up their home for an upcoming open house. d. Complainants presented Daniel with a cash down-payment, without obtaining any receipt in return. e. Meryl testified that Daniel and a couple of other men worked on the project primarily on a Saturday and Sunday, with additional work performed during the following work week. f. Meryl testified that she paid Daniel approximately $3,000.00, in cash, and she refused to pay any balance on the contract, due to the fact that the work was unsatisfactory and Daniel’s repair attempts were unsuccessful. g. Meryl testified that Daniel had provided her with a card that showed he was an employee of Coating. In addition, Meryl’s position is that Daniel never mentioned to her that the project was going to be done as a “side job,” without Coating’s involvement. Nevertheless, Complainants did not receive any paperwork whatsoever, such as a bid form, contract, receipt, etc. from Daniel for this project. h. When Complainants were unable to get any satisfaction from Daniel for the deficiencies in the concrete coating, Meryl contacted Coating’s office. She had previously made all of her telephonic contacts with Daniel’s cell phone. On her first call to Coating, she spoke to a man (name unknown) who she claims said to her that “Danny is doing it again.” Finally she spoke to Coating’s qualifying party, Charles Sheppard (“Sheppard”). Sheppard was very upset about this development and advised Meryl that Daniel was fired immediately upon his receipt of the story regarding what Daniel had done on her property. i. According to Sheppard, he knew nothing about this project and Daniel was not authorized to bid any jobs for Coating. Sheppard testified that Coating did not receive any money on this job and had no business record reflecting this project. j. Sheppard also testified that a job like the one in question would have cost approximately three (3) times what Complainants paid. k. Sheppard testified that on his first meeting with Meryl, she admitted to him that she had hired Daniel as a side job, payable with cash only. He also testified that Meryl made some sort of statement to the effect of “I guess I screwed up.”

3. The testimony of Sheppard, that Coating had nothing to do with the project at issue herein and that Meryl admitted to him that she knew Daniel was doing the work as a side job, at a deeply discounted rate for a cash payment, is found to be credible. Moreover, it strains credibility that anyone would give someone 3,000 in cash to perform work on their home and not ask for something in writing. All of the facts and circumstances presented militate for the conclusion that Complainants knew or should have know that they were paying Daniel “under the table” for a side job and they were not contracting directly with Coating. Thus, under these facts and circumstances Coating cannot be properly held to be responsible for the conduct of an employee who was clearly off “on a lark of his own,” with the knowing participation of Complainants.

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 Coating 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 Coating 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 (M07-1185/1185W), 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, October 29, 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