ALJDEC decisions subject to certification as final

07F-T0276-ROC · Registrar of Contractors · 2007-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, November 5, and November 30, 2007. APPEARANCES: The Complainant appeared through his attorney, Michael Woodlock. The Respondent appeared through its attorney, Neal Eckel. 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. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work to the Complainant’s satisfaction despite repeated requests that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant 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 issued a lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: “All work to be done by appropriate means: 1. Drainage not sufficient a. Front drainage to wall, ponds: Contractor to grade per code, need 6” drop in 10’ or meet county requirements. 3. Trench dug: Footer damaged under fence by machine. 4. Home flooded 6/20/06: See video. 5. Diversion ditch: Homeowner wants front connected to trench on east. Contractor says wall in the way of natural drainage. Contractor to meet county requirements. 6. Drainage: See #1, #3, #4, #5 & #6. 8. Roof ponding at 2 air conditioning units: Contractor to correct. 9. Garage(water comes in under door/molding: Contractor to correct. 10 a. Door fit: Front entry, need 1/8.” b. Garage to laundry, need 1/8.” Threshold loose, tile to threshold checked. c. Closet in hall bi-fold need repair and proper install. d. master bedroom door won’t latch: Contractor to correct per Registrar of Contractors standards. Add list dated September 22, 2006. 1. Concrete cracks: A. Drive way. B. Curb. C. Rear patio. Contractor to correct per Registrar of Contractors. 2. Leak in tub(crack: Contractor to correct. 3. Termites: Homeowner to contact STR Pest Control Commission 1-800-223-0618. 4. Concrete/block at gate: See #1 above on original list. 5. Smell in bathroom: Contractor to check plumbing. 6. Air conditioning pond: Duplicate. 7. Southwest bedroom too hot, need thermometer test per Registrar of Contractors workmanship book. 8. Garage door: Duplicate. 9. Cracks in paint front at water pipe, stucco front at water pipe: Contractor to correct. 10. Garage ponding: Duplicate. 11. Duplicate. 12. Duplicate. 13. Drainage: See above. List October 27, 2006: 1. Carpet in master bedroom not stretched at closet shelves: Contractor to correct. 2. Kitchen cabinet: drawers need adjustment. Door, need adjustment: Contractor to correct. 3. East bedroom glass cracked: Contractor to correct. 4. Front yard hose bib: Duplicate. 5. Complete this project according to Registrar of Contractors Workmanship Standards Book, Rule R4-9-108, all written and all verbal contract agreements, prints, plans, specifications, and manufacturer’s specifications, manufacturer’s installation instructions, in accordance with good workmanship practices, industry standards and per all applicable codes. “ 7. The only items presented at hearing were those relating to drainage; specifically, the drainage on the west side of the Complainant’s residence and the drainage east side/front of the residence. 8. Credible testimony and evidence, presented at hearing, established the drainage on the west side of the Complainant’s residence has been corrected to within applicable industry and workmanship standards. No further work by the Respondent was shown to be necessary. 9. Credible testimony and evidence presented at hearing established the Respondent has performed corrective work on the drainage problem on the east side/front of the residence which has corrected the drainage situation to within applicable industry and workmanship standards. No further corrective work by the Respondent was shown to be necessary. 10. The remaining items of the Corrective Work Order were either corrected by the Respondent, resolved by the parties or insufficiently proven to be workmanship deficiencies. 11. The credible testimony and evidence or record is found to support a finding that the Respondent has substantially complied with the terms and conditions of the Corrective Work Order issued in this matter.

CONCLUSIONS OF LAW 1. The Complainant has 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). 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 Complainant failed to sustain his burden of proof to establish that the Respondent failed to substantially comply with the terms and conditions of the Corrective Work Order. 5. The credible evidence of record is insufficient, and fails, to support 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 closed. 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 18, 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