ALJDEC decisions subject to certification as final

08F-S0250W-ROC · Registrar of Contractors · 2009-07-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 2009 at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. Respondent Titan Drilling LLC (Titan) appeared through its attorney, Joy Elkins. Respondent Digger’s Pump Service LLC (LLC) appeared through its authorized representative, Les Franklin. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. At the onset of the scheduled hearing, all parties stipulated to dismiss the Complaint and Citation against Digger’s Pump Service LLC (LLC) on the basis that Digger’s Pump Service LLC (LLC) had nothing to do with the matters at issue. 2. Respondent Titan is the holder of a Class C-53 License issued by the Registrar of Contractors. 3. Respondent Titan constructed a water well and installed a pump in the Complainant’s well. 4. After several problems with the pump and repeated repairs by Respondent Titan, the Complainant retained an unlicensed person to replace the fitting installed by Respondent Titan with a brass fitting and filed a Complaint against Respondent Titan. 5. The Complainant seeks restitution in the sum of $1,116.98 for the costs of repairs to his pump system. 6. Credible testimony established that much of the corrective work at issue was performed by an unlicensed person and that corrective work at issue should have necessitated the obtaining of a permit. Restitution is not available for unlicensed activity. 7. The credible evidence of record is insufficient and fails to support a finding that Respondent Titan’s work on the Complainant’s water well and pump failed to comply with applicable industry and workmanship standards. 8. There was no credible evidence of any wrongful or fraudulent act by Respondent Titan. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent Titan has 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 his burden of proof to establish that Respondent Titan violated the applicable charged sections of the State’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent Titan of the provisions of A.R.S. § 32-1154A, as charged in the Citation and Complaint.

RECOMMENDed orders In view of the foregoing, it is recommended that the Citation and Complaint against Respondent Digger’s Pump Service LLC (LLC) be dismissed. In view of the foregoing, it is recommended that the Citation and Complaint against Respondent Titan Drilling LLC (LLC) 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 these Orders will be 40 days from the date of the certification. Done this day, July 14, 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