ALJDEC decisions subject to certification as final

08F-1903-ROC · Registrar of Contractors · 2008-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 10, 2008 APPEARANCES: The Complainant appeared in his own behalf. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The matter came on for hearing as scheduled. The Complainant was present but the Respondent failed to appear[1]. 2. In 2005, the Respondent constructed the Complainant’s home in Mesa, Arizona. 3. The Complainant moved into the home in June, 2005. 4. The Complainant testified that the Respondent performed corrective work on the driveway in February 2006.[2] 5. In November 2006, the Complainant obtained a Home Inspection Report (Report) from a private firm. The report addressed possible problems with driveway control joints. 6. On January 2, 2008 the Complainant filed his Complaint with the Registrar of Contractors (ROC), because the Respondent failed to complete warranty work and the driveway was a trip hazard. 7. On February 2, 2008, ROC Inspector Beau Cruz (Cruz) performed a jobsite inspection. Cruz testified the slope of the concrete was toward the garage which would cause water to pond. 8. Cruz declined to issue a Corrective Work Order (CWO) because the Complaint was filed over two years after the initial move in date and he did not believe there was sufficient evidence that the suspect concrete slabs were replaced within the two year Statute of Limitations (SOL). Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32- 1154(A)(3)/A.A.C. R4-9-108, workmanship; (A)(7), a wrongful or fraudulent act with substantial injury; and (A)(10), aiding and abetting an unlicensed person evade the applicable contracting laws. 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. 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. The applicable SOL under A.R.S 31-1155(A) provides in pertinent part that the two year SOL shall commence on the earlier of close of escrow or actual occupancy and otherwise shall commence on the completion of the specific project. This portion of the statute was added by amendment in 2003. 5. Although the Complaint was filed over two years after the Complainant moved into the home (two and a half years, June 2005 to January 2008), the evidence is sufficient to conclude that repairs were performed in February, 2006. The repairs of February 2006 were within two years of the January, 2008 Complaint. This evidence was not contested and is therefore accepted as reliable. 6. The Opinion of the Attorney General I79-119, provides that although repair attempts do not toll the statute of limitations, “….repair work, if performed, may in and of itself give rise to an independent claim for which the applicable statute of limitations may begin to run.” Although the 2003 the amendment of A.R.S. §32-1155(A), gave further clarity to the SOL, it did not address or alter the above A.G. Opinion as to the consequence that performing repair work which would give rise “… to an independent claim for which the statue of limitation may begin to run”. 7. Absent evidence to the contrary, or any legal argument that would show the cited A.G. Opinion is not applicable, it is concluded that the Complainant has met the required burden of proof with respect to A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108 and (A)(7). There was no competent evidence with respect to an (A)(1) violation. 8. In view of the current suspension of the Respondent’s license and the Respondent’s unexplained failure to appear and offer a defense at the hearing, the following recommendation is submitted. Recommended Order It is recommended commencing the effective date of the Order[3] in this case, that the Class B license, No. 130985, of the Respondent be revoked.

Done this day, December 29 2008

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The Respondent’s license is currently suspended effective October 10, 2008 for lack of bond. [2] The Complainant submitted an E-Mail dated March 3, 2006, sent to the Respondent, addressing certain concrete repairs which were recently done in the vicinity of the garage. [3] Forty (40) days from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826