ALJDEC decisions subject to certification as final

09F-S0224-ROC · Registrar of Contractors · 2010-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Brenda Parker. 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’s Class K-21 License was canceled on January 27, 2010. 2. This is a residential matter where the Respondent performed landscaping work for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to the Complainant’s satisfaction despite her demand that it do so. 4. When the Respondent failed to comply with the Complainant’s demand the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and personally inspected each item of the Complainant’s complaint and, pursuant to the parties’ onsite stipulation, two additional items that were not set forth in the complaint. 6. The Inspector moved to close the complaint on the following basis: I lack jurisdiction o n the item, item over the warranty period or I could not determine the extent of the contractor’s responsibility. 7. The Complainant disagreed with the Inspector’s decision and requested an administrative hearing. 8. The Complainant asserted at hearing that she should be entitled, as restitution, to the sum of $4,443.00 for alleged overcharges, poor workmanship and dead plants. 9. The Respondent disputed the Complainant’s monetary claim. 10. 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. The Respondent’s position in this monetary dispute is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that a liquidated sum of restitution is owed to the Complainant. 11. The credible evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its work in a professional and workmanlike manner. 12. The credible evidence of record is insufficient and fails to support a finding that the Respondent failed to complete a construction project for the agreed upon price. 13. There was no credible evidence of a wrongful or fraudulent act by the Respondent.

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. Proof by preponderance of the 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 Complainant failed to sustain her burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by 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 10, 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