ALJDEC decisions subject to certification as final

08F-0322-ROC · Registrar of Contractors · 2008-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2008 APPEARANCES: The Complainant represented himself. The Respondent[1] represented himself. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. By June, 2006 the Complainant’s 13 year old automatic garage door had become slightly damaged[2] over a period of time. The Complainant contacted the Respondent to replace four steel panels on the door and add a horizontal strut. 2. On July 1, 2006, one of the Respondent’s employee replaced four steel panels and added a strut to the Complainant’s garage door. The cost was $884.17. The door functioned properly during testing after the work was completed. 3. Sometime after the above referenced work, the garage door would at times jerk when being opened. The Complainant did not immediately contact the Respondent after he noted the condition. 4. Subsequently, the Complainant contacted the Respondent regarding the problem with the jerking garage door and on June 30, 2007, another of the Respondent’s employees adjusted the garage door opener. 5. The Respondent charged the Complainant $68.42 for the service call. 6. On August 7, 2007, the Complainant filed the Complaint with the Registrar for Contractors. The Complainant contends the additional weight of the strut required an adjustment of the door opener. This should have been done and had it been done at the time of the initial panel replacement, the service call and the Complainant’s payment would not have been necessary. Conclusions of Law The Citation and Complaint allege violation of A.R.S.§32- 1154(A)(3)/A.A.C. R4-9-108, workmanship standards, and (A)(7) a wrongful act with substantial injury. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P. 2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P. 2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. Leaving aside the question of whether Complainant’s payment of $68.42 constitutes “substantial injury” as set forth in (A)(7) of the statute, the evidence presented at the hearing does not constitute “substantial evidence” or a preponderance of the evidence necessary to prove either charged violation, for the following reasons. 5. In addition to the fact that the garage door tested properly after the replacement of the panels and addition of the strut, the Complainant testified the door opener had been adjusted sometime before the replacement because the door opener had jerked at times. This shows that the jerkiness of the door opener is not necessarily related to the addition of a strut. 6. The Respondent testified the strut weighed eight pounds and the door weighed 200 pounds. The 4% addition in the total weight of the door can hardly be said to be “substantial evidence” that it caused the jerking motion of the opener. 7. Finally, the Complainant acknowledged that he “assumed” there was a cause and effect relationship between the addition of the strut work and the door opener jerking[3]. Assumptions generally do not constitute substantial evidence. Recommended Order It is recommended the Citation and Complaint upon which it is based be dismissed. Done this day, September 10, 2008

______________________________________ Allen Reed Administrative Law Judge

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

Armando Contreras , Acting Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Owner Darrell Peruch [2] Some panels had been dented [3] The Complainant was aware that this was Post hoc ergo propter hoc reasoning and that it does not necessarily prove the fact asserted.

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