ALJDEC decisions subject to certification as final

08F-2145-ROC · Registrar of Contractors · 2009-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2009 APPEARANCES: The Complainant appeared in her own behalf. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The matter came on for hearing as scheduled. The Respondent failed to appear with no good cause known for the non appearance. As of January 7, 2009, the Respondent’s license is listed as “Suspended” for lack of bond, according to the Registrar of Contractors (ROC), website. 2. The Respondent’s August 14, 2008 Answer to the Citation and Complaint, asserted the Respondent had filed a Chapter 11 Petition in Bankruptcy. The Respondent provided no confirming information, such as a copy of the petition, case number, venue etc. Absent some confirmation of the filing, the assertion is considered inadequate to stay the instant proceeding[1]. 3. The following findings are submitted based on the uncontested testimony presented by the Complainant. 4. In 2005, the Complainant executed a contract for the purchase of a home to be constructed by the Respondent, in Chandler, Arizona. The purchase price was $528,791.00 5. The Complainant moved into the home in August, 2006. 6. On January 30, 2008, the Complainant filed the Complaint with the ROC. 7. On March 3, 2008, ROC Inspector Mark Alyea (Alyea) performed a jobsite inspection. 8. On March 11, 2008 Alyea issued a Corrective Work Order (CWO) which required the Respondent to install a re-circulating water system which the Respondent had failed to install[2]; to correct the improper slope which was causing flooding in the backyard; correct drywall cracks in a bedroom window, kitchen ceiling, dining room light switch, middle of (dining room) ceiling, and basement ceiling; correct drywall texture to match in the garage, top of stairs at the wall, laundry hall behind kitchen, and powder bath room; and to correct water pipe noise behind master bath vanity[3]. 9. The Respondent failed to make required repairs and the Complainant requested a hearing. 10. On August 7, 2008 the ROC issued the Citation and Complaint. 11. On August 14, 2008, the Respondent filed its Answer to the Citation and Complaint, wherein the Respondent acknowledged failing to perform the required corrective work because of a lack of funds. Conclusions of Law The Citation and Complaint alleges violation of A.R.S § 32-1154 (A)(3)/A.A.C. R4-9-108 workmanship standards; (A)(7), a wrongful act with substantial injury; and (A)(23), failure to take appropriate corrective action. 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 evidence was not contested and the facts establish the violations of (A)(3)/A.A.C. R4-9-108, (A)(7), and (A)(23), as charged in the Citation and Complaint. 5. In view of the fact that the Respondent has disregarded the instant proceedings with no verifiable explanation for such disregard, the following recommended Order is submitted. Recommended Order It is recommended commencing the effective date of the Order issued in this matter[4] that the Class KB-02 License, No. ROC 175525, of the Respondent, be Revoked.

Done this day, January 26, 2009

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

By ___________________________

----------------------- [1] The mere assertion of a bankruptcy filing cannot be considered reliable information. It is unknown if a petition has actually been filed, if the party filing the petition is the same as the Respondent, and potentially a host of related questions. [2] The Respondent had offered to reimburse the Complainant $1,960.00 for the cost of the missing re-circulating system contingent on the Respondent’s accounting department accepting the request for reimbursement and issuing a check. [3] Other items set forth in the Complaint had been corrected or did not require further action. [4] Forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings

-----------------------

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