ALJDEC decisions subject to certification as final

07F-T0205-ROC · Registrar of Contractors · 2007-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 24, and November 20, 2007, at 9:00 a.m. APPEARANCES: The Complainants appeared through Arthur Langeloh. The Respondent appeared his own behalf. 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 C-42 License issued by the Registrar of Contractors. 2. This is a residential matter where during the month of August 2001 the Respondent performed roofing work on the Complainants’ residence. 3. There was no dispute that the Respondent returned approximately one and one half years later and performed corrective work on the Complainants’ roof. 4. There was no dispute that on or about November 18, 2004 the Respondent re-roofed a portion of the Complainants’ residence for the sum of $4,480.00. 5. Credible testimony and evidence established on or about December 22, 2004, the Complainants experienced further leakage in the roof and the parties entered into an Agreement wherein the Respondent re-roofed a portion of the Complainants’ roof and the parties split the cost of the repair with each party bearing one half (approximately $2,000.00) of the cost of the repairs. 6. On August 7, 2006, the Complainants filed the Complaint at issue alleging the Respondent had failed to properly correct the problems with their roof and the roof leaked despite the extensive amount of work completed by the Respondent. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. The Inspector moved to close the Complaint on the following basis: “I cannot determine the cause or location of the cause of the leak. I cannot verify that the roof is leaking in the area where this contractor has re-roofed.” 8. The Complainants disagreed with the Inspector’s action and requested an administrative hearing. 9. The Complainants then retained an alternative licensed contractor which has corrected their roofing to the Complainants’ satisfaction. No further corrective action on the Complainants’ roof is being requested. 10. The Complainants are now requesting that the Registrar of Contractors impose an appropriate disciplinary measure on the Respondent’s Class C-42 License and require the Respondent be required to, as restitution, reimburse the Complainants for their costs in having the alternative roofing contractor correct their roofing. 11. The credible evidence or record is insufficient, and fails, to support a finding as to the cause or location of the leak in the Complainants’ roof. Consequently, the credible evidence of record is insufficient, and fails, to support a finding as to whether the Complainants’ roof was leaking in the area where the Respondent performed its re-roofing work in 2004.

CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the 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). 3. 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). 4. The Complainants failed to sustain their burden of proof to establish 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 the Respondent of the provisions of A.R.S. §32-1154 A, 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, December 4, 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 ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488