ALJDEC decisions subject to certification as final

08F-T1257-ROC · Registrar of Contractors · 2009-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 2009 at 1:30 p.m. APPEARANCES: The Complainants appeared through Robert J. Miller. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

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 framing work as a framing subcontractor on the Complainants’ new residence. 3. There was no dispute that there are large cracks along the edge where the ceiling meets the wall throughout the Complainants’ new residence. 4. There was no dispute that the cracking is unacceptable and unusual. 5. The Complainants assert that the cracking is due to the lack of proper truss engineering and the alleged failure by the Respondent to properly attach the interior walls to the roof trusses via clips and connectors. 6. The Complainants demanded that the Respondent properly correct the problems with their residence. When the Respondent failed to comply with their demand, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 8. The Inspector moved to close the Complaint on the following basis: 1) Complaint of cracked walks, separation of ceiling walls, lifting of walls-Jobsite found separation of drywall, unable to determine cause from jobsite-No action required. 2) Complaint of question truss engineering and interior wall attachments. At jobsite received engineer stamped truss calculations unable to determine if interior wall attachments within local building authority requirements; passed local inspections-No action required. 9. The Complainants disagreed with the Inspector’s decision and filed a request for an administrative hearing. 10. Credible testimony and evidence established that the Respondent’s framing work was inspected and approved by the local building authority. 11. Credible testimony and evidence established that the trusses in the Complainants’ residence had stamped truss calculations by an engineer and that the installation of the trusses had been inspected and approved by the local building authority. 12. The credible evidence of record is insufficient and fails to support a finding that the Respondent’s framing work failed to comply with applicable industry and workmanship standards. 13. The credible evidence of record is insufficient and fails to support a finding that the Respondent committed a wrongful or fraudulent act. 14. The credible evidence of record is insufficient and fails to support a finding of any action or inaction by the Respondent that may have caused the cracking in the Complainants’ residence.

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). 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 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 evidence of record did 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 and Complaint.

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, May 4, 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