ALJDEC decisions subject to certification as final

08F-T0919-ROC · Registrar of Contractors · 2009-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2009, at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, James Sherman. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class K-67 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent provided dimensions for a shelf for a 50” plasma TV set for the Complainant’s residence. Another licensed contractor constructed the TV shelf for the Complainant.

3. Credible testimony and evidence, presented at hearing, established the TV shelf was not constructed in accordance with the Respondent’s dimensions and it was too small for the 50” TV set. 4. There was no dispute that the Respondent was able to install the 50” TV set in the smaller opening by utilizing an alternative track system. 5. Credible testimony and evidence, presented at hearing, established the Complainant was aware of the fact that the shelf was smaller than designed and he agreed with the installation of the TV set utilizing the alternative track system. 6. Approximately two years after the TV set was installed the Complainant experienced a problem with the TV set and notified the Respondent. 7. The Respondent removed the TV set and the Complainant sent the TV set in for repair. 8. There was no dispute that after the TV set was removed the Respondent, at the Complainant’s request, installed ventilation holes in the TV shelf. 9. The TV set was then repaired by a TV repair shop and reinstalled by the Respondent. 10. The Complainant then contacted the Respondent and asserted the Respondent had damaged his couch during the reinstallation process. 11. The Respondent denied that it was responsible for any damage to the Complainant’s furniture and refused to pay for a repair to the Complainant’s couch. 12. The Complainant then filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 13. The Complainant asserts that the TV set failed due to overheating which was allegedly caused by the initial improper installation of TV set and that the Respondent damaged his couch during the reinstallation process.

14. The Complainant seeks, as restitution, the total sum of $1,412.81 for his costs of repairing the TV set and the couch and reimbursement for the monies paid to the Respondent for its work in removing and reinstalling the TV set. 15. The credible evidence or record, is insufficient, and fails to support a finding regarding the cause of the TV set’s failure. 16. There was no credible evidence of any poor workmanship by the Respondent in either he initial installation of the TV set or in the reinstallation of the TV set. 17. The credible evidence of record is insufficient, and fails, to support a finding that the Respondent damaged the Complainant’s couch during the reinstallation of the Complainant’s TV set. 18. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent for the Complainant’s alleged damages. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith. 19. The parties dispute regarding the Complainant’s claim for monetary damages is found to be a good faith money dispute which should be resolved, if at all, in a civil court of competent jurisdiction. 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). 3. 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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the State’s contracting laws. RECOMMENDed order In view of the foregoing, it is recommended 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, February 10, 2009. ______________________________________ M. Douglas Administrative Law Judge

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

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

By __________________________ -----------------------

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