ALJDEC decisions subject to certification as final

09F-6527-ROC · Registrar of Contractors · 2010-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2, 2010 at 1:00 p.m. APPEARANCES: The Complainants appeared through Tyler Crawford. The Respondent appeared through its authorized representative, Brett Ferguson 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 K-05 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a splash water feature in the Complainants’ yard. 3. There was no dispute that the splash water feature cracked. 4. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to their satisfaction despite their demand that the Respondent do so.

5. When the Respondent failed to comply with the Complainants’ demand the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 7. The assigned Agency Inspector moved to close the complaint on the following basis: Crack present in the splash pad was 1/64 to 1/32 of an inch in width and vertical displacement of less than 1/32 of an inch, all within the AZ ROC. “Workmanship Standards for Licensed Contractors.” ROC “Workmanship Standards for Licensed Contractors” regarding exterior concrete slabs, state that cracks of less than 3/32” width or less than 1/8” vertical displacement are acceptable and swimming pool concrete deck standards, state “Shrinkage and minor movement cracks occur in concrete deck work without adversely affecting its serviceability. Maximum allowable horizontal or vertical displacement should not exceed 1/16” except at designed joints where horizontal and vertical displacement of up to 1/8” in 5’ are acceptable. 8. The Complainants disagreed with the Inspector’s finding and requested an administrative hearing. 9. The assigned Agency Inspector testified that he had conducted a prehearing inspection and that the crack has not increased in size from the date of the first inspection. 10. Credible testimony and evidence established that the Registrar of Contractors does not apply perfection standards when judging workmanship. The standard, as applied by the Registrar, is whether the workmanship involved complies with applicable industry standards for good and proper workmanship. 11. The credible evidence of record is insufficient and fails to support a finding that the Respondent’s construction work on the Complainants’ splash water feature failed to comply with applicable workmanship and industry standards.

CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent 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). 3. Proof by “preponderance of evidence” 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. §32-1154A, 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, February 2, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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