ALJDEC decisions subject to certification as final

08F-S0215-ROC · Registrar of Contractors · 2009-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 7, 2009 ant October 2, 2009 at 8:00 a.m. APPEARANCES: The Complainants appeared through Charles Supplee. The Respondent appeared through its attorney, Phillip H. Grant. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and 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 B-05 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a new swimming pool and associated decking for the Complainants. 3. The Complainants were dissatisfied with the Respondent’s workmanship and the Respondent’s failure to correct its work to their satisfaction despite their repeated demands that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated demands, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 6. The assigned Agency Inspector moved to close the case on the following basis: I could not determine the extent of the Respondent’s responsibility as to the placement and height of the pool or the cause of the unlevelness of the pool, the other items were either corrected by the Respondent or are within the workmanship standards or not specified in the contract. 7. The Complainants disagreed with the Inspector’s action and requested an administrative hearing. 8. There was no dispute that the Complainants’ swimming pool is approximately one to one and half inches out of level over the thirty foot length of the swimming pool. 9. Credible testimony and evidence established that the variation in level of the Complainant’s swimming pool swimming pool is within applicable workmanship and industry standards. No action by the Respondent was shown to be necessary. 10. Credible testimony and evidence established that the crack in the Complainants’ swimming pool decking is within applicable workmanship and industry standards. No correction by the Respondent was shown to be necessary. 11. There was no dispute that the Respondent was issued a letter on May 21, 2008 informing it that it was necessary to include the Respondent’s ROC License number on all advertising, letterheads and other documents used by the Licensee in the conduct of its business. 12. Credible testimony and evidence established that the Respondent complied with the terms and conditions of the May 21, 2008 letter issued by the Registrar of Contractors. 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). 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). 3. 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 credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §§3 2-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes); (A) (7) (Wrongful or fraudulent act); (A) (15) (Acting in the capacity of a contractor under any license issued in a name other than as set forth upon the license); (A) (3): NAMELY RULE R4-9-108 (Failure to perform work in a professional and workmanlike manner); and (A) (13): NAMELY A.R.S. § 32-1123 (B) as charged in the Citation.

RECOMMENDed order In view of the foregoing, it is recommended that 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, October 12, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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