ALJDEC decisions subject to certification as final

09F-S0180-ROC · Registrar of Contractors · 2009-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 10, 2009 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Robert Smith. 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-39 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed HVAC work on a residence that was then owned by the Complainant. 3. There was no dispute that the Complainant has now sold the residence. 4. There was no dispute that the mortgage closing company issued the Respondent a check in the sum of $2,111.20 for the Respondent’s completed HVAC work. 5. There was no dispute that the Complainant then caused the mortgage closing company to put a stop payment on the issued check. 6. There was no dispute that the Respondent has not yet received payment for the HVAC work completed on the residence that has been sold. 7. The Complainant asserts that the Respondent represented that the estimated cost for the HVAC work was going to be approximately $800.00 and that the Respondent’s submitted invoice was more than twice as much as the oral estimate. 8. The Respondent asserts that the estimate was that the construction cost would be no more than approximately $2,000.00. 9. There was no dispute that there was no request for a written estimate prior to authorizing the Respondent to perform the agreed upon HVAC work. 10. The parties’ dispute regarding the amount of money that the Complainant owes the Respondent for the Respondent’s completed HVAC work is found to be a good faith dispute which will necessarily involve a monetary adjudication and which should be resolved in a civil court of competent jurisdiction. 11. The credible evidence or record is insufficient and fails to support a finding that the Respondent committed a wrongful or fraudulent act. 12. The credible evidence of record is insufficient and fails to support a finding that the Respondent HVAC 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 failed to complete the construction project for the price stated in the parties’ construction agreement. 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 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.

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, November 10, 2009.

/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