ALJDEC decisions subject to certification as final

07F-T1233-ROC · Registrar of Contractors · 2008-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2008, at 9:00 a.m. APPEARANCES: The Complainants appeared through Richard Ablin. The Respondent appeared on 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. The Respondent is the holder of a Class K-11 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent was retained by a general contractor and performed electrical work on the Complainants’ residence. 3. During the performance of his electrical work the Respondent discovered that the Complainants had a pre-existing electrical problem with exposed wire and improper electrical connections in their attic. 4. The Respondent notified the general contractor of the problem and asked to have the Complainants contact him and he “would finish up and work out the rest of the electrical details” at an undisclosed additional cost to the Complainants. 5. The Complainants and the general contractor then became embroiled in a dispute and the general contractor either abandoned the construction project or was terminated from the construction project. 6. Credible testimony and evidence, presented at hearing, established the general contractor then contacted the Respondent and instructed the Respondent not to return to the jobsite because the Complainants had locked the general contractor and the Respondent out of jobsite and would not let them finish. 7. The Complainant was dissatisfied with the Respondent’s workmanship and failure to complete and correct his work to their satisfaction and filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 9. The Inspector moved to close the Complaint on the following basis: “1. Contract not complete: Homeowner took over job and work done by Major Electric. Contractor claims denied access. 2. Permits: Homeowner chose to have Major Electric to get permit and final inspection of safety issues. 3. Unsafe conditions: Homeowner had Major Electric address concerns.” 10. No Corrective Work Order was issued. 11. The Complainants disagreed with the Inspector’s action and requested an administrative hearing. 12. Credible testimony and evidence, presented at hearing, established the Respondent installed lighting in the Complainants’ residence according to the directions of the general contractor for the construction project. 13. Credible testimony and evidence, presented at hearing, established the Respondent was not aware of the Complainants’ dissatisfaction until the Complaint at issue was filed and the Complainants’ electrical work had already been completed and corrected by an alternative licensed electrical contractor. No further electrical work by the Respondent is necessary. 14. The credible evidence of record is found to be 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 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 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, February 29, 2008. ______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ -----------------------

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