ALJDEC decisions subject to certification as final

08F-S0233-ROC · Registrar of Contractors · 2009-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2009 at 8:15 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, James Hansen. 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- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed remodeling work on the Complainant’s residence pursuant to a written agreement with USDA Rural Development. 3. The Complainant was dissatisfied with the Respondent’s workmanship and filed a formal complaint against the Respondent with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 5. The Agency Inspector moved to close the Complaint on the following basis: The items were either corrected by Complainant, Respondent or I could not determine if the Respondent has any responsibility. 6. The Complainant disagreed with the Inspector’s action and requested an administrative hearing. 7. Credible testimony and evidence established that the Respondent completed its work on the Complainant’s residence on or before December 14, 2006. 8. There was no dispute that the Respondent returned to the Complainant’s residence during May 2007 and performed repairs to the Complainant’s roof. 9. Credible testimony and evidence established that the Respondent returned again in August 2008 and inspected the Complainant’s roof and found that the roof covering had separated and corrected the roof. 10. Credible testimony and evidence established that the Respondent’s construction work had been corrected to within applicable industry and workmanship standards. 11. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s construction work fails to comply with applicable workmanship and industry standards. 12. There was no credible evidence of a wrongful act by the Respondent.

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). 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 Complainant failed to sustain her 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 does not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. § 32-1154 (A) 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, August 10, 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 ________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com