ALJDEC decisions subject to certification as final

07F-T0118-ROC · Registrar of Contractors · 2007-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 2007, at 9:00 a.m. APPEARANCES: The Complainants appeared through Lawrence T. Nagore. The Respondent appeared through its attorney, William Poorten, III.

ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class KB-01 License issued by the Registrar of Contractors. 2. The Respondent constructed a custom residence for the Complainants. 3. The Complainants were dissatisfied with the Respondent’s workmanship, the Respondent’s alleged failure to follow plans and specification, and the Respondent’s refusal to correct its work to their satisfaction despite their demand that it do so. 4. The Complainants then filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 2, 2007, issued a letter stating that the matter be closed unless the Complainants filed a written request for an administrative hearing within ten (10) days. 6. On August 30, 2006, the Inspector issued a letter informing the parties that the Complaint was closed because the Registrar of Contractors had not received a reply from the Complainant in response to the August 2, 2007 letter. 7. On September 12, 2006, the Complainants filed a request for an administrative hearing and the matter was reopened. 8. Credible testimony and evidence, presented at hearing, established the stairwell and the balcony were constructed in conformance to the approved plans and specifications for the construction of the Complainants’ residence. 9. The credible evidence or record is insufficient and fails to support a finding of a wrongful or fraudulent act by the Respondent.

CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that Respondent violated the charged sections of the State’s Contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437- 38, 930 P.2d 508 (Ariz. App. 1996). 2. 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). 3. The Complainants failed to sustain their burden of proof to establish that the 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 In view of the foregoing, it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, June 8, 2007.

______________________________________ M. Douglas 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 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488