ALJDEC decisions subject to certification as final

07F-Y0187-ROC · Registrar of Contractors · 2008-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2008, at 1:30 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Michael Bann. The Respondent appeared through its authorized representative, Dennis Dole. . 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 K-37 License issued by the Registrar of Contractors. 2. This is a commercial matter where the Respondent performed plumbing work as a plumbing subcontractor for the Complainant. 3. The Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. The Complaint provides, in pertinent part, as follows: “1. Plumbing not as per plans. 2. Not under test-see inspection card. 3. Back graded. See inspection card. 4. Abandoned Job. GD Plumbing has cost West Mark Engineering Inc., job with Post 1763 VFW. Loss of time, VFW used another plumbing company.” 4. The Registrar of Contractors issued a Citation and Complaint and the Respondent filed a written Answer. The Respondent’s Answer provides, in pertinent part, as follows: “In response to the complaint…GD Plumbing and Supply, LLC was made aware of deficiencies by Mr. Frank Sheridan, Commander of VFW Post 1763 for work completed on June 13, 2006 and inspected on June 14, 2006 had deficiencies. Mr. Frank Sheridan, Commander of VFW Post 1763 informed me of the problems after the inspection. On June 26, 2006, my partner, Robert Foster and a helper, Gary Coen were on site and took care of the deficiencies. An inspection was called for and the work passed the inspection on June 27, 2006.” 5. Mr. Bann testified that Robert Foster stated after the initial plumbing work was corrected the Respondent would never return to construction site and would not perform any further work on the project for the Complainant. 6. The Respondent’s representative testified and denied that the Respondent ever refused to return to the construction site and stated the Complainant never notified the Respondent that construction work had progressed to the point at which further plumbing work was possible. 7. The credible evidence of record is insufficient, and fails, to support a finding that the Respondent was notified that work had progressed to the point where the Respondent was required back at the construction site to perform further plumbing work. 8. There was no dispute that the Respondent’s initial plumbing work failed to comply with applicable industry and workmanship standards and the local building authority required the Respondent to correct the initial plumbing work. 9. There was no dispute that the Respondent returned to the construction site and corrected its plumbing and the Respondent’s plumbing work was found to be acceptable to the local building authority. 10. The credible evidence of record is insufficient, and fails, to support a finding that the Respondent abandoned the construction site. 11. The credible evidence of record is insufficient, and fails, to support a finding that the Respondent committed a wrongful or fraudulent act.

CONCLUSIONS OF LAW 1. The Complainant has 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 Complainant failed to sustain its burden of proof to establish the Respondent violated the applicable charged sections of the State’s Contracting Laws. Therefore, the credible 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, January 25, 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