ALJDEC decisions subject to certification as final

09F-T0239-ROC · Registrar of Contractors · 2009-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2009 at 8:00 a.m. APPEARANCES: The Complainants appeared through Stephanie Cundari. The Respondent appeared through its authorized representative, Lyle Trotter. 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-08 License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to install new carpeting and carpet padding in the Complainants’ residence. 3. There was no dispute that the Respondent then subcontracted the actual installation work to NVD Flooring LLC. 4. The Complainants were dissatisfied with NVD Flooring LLC’s workmanship and with the theft of personal items and money that occurred during the construction work. 5. Credible testimony and evidence established that Complainants notified the Respondent and NVD Flooring LLC of the workmanship problems and the alleged thefts. 6. Credible testimony and evidence established the Respondent resolved the workmanship issues. 7. When the Respondent and NVD Flooring LLC refused to acknowledge and accept responsibility for the alleged thefts the Complainants filed formal complaints against the Respondent and NVD Flooring LLC with the Registrar of Contractors. 8. There was no dispute that NVD Flooring LLC did not contest the complaint filed by the Complainants and that the Registrar of Contractors issued a default Decision and Order in case no. T09-0240 on August 7, 2009. 9. Credible testimony and evidence established that the following personal items were stolen from the Complainants’ residence during the construction work performed by NVD Flooring LLC: (1) A engagement wedding ring; (2) A Sony Cyber Shot Camera and memory stick; (3) A Treo 755 Palm Cell Phone and (4) $450.00 in cash. 10. There was no dispute that the Complainants’ insurance company paid the Complainants the sum of $2,324.66 for the stolen items 11. The Complainants assert that the actual total value of the four items was $3,766.00. 12. The Complainants assert that they have incurred additional costs for attorney’s fees and service fees and a $500.00 insurance deductible for a total of $770.00. 13. The Complainants seek an offset for their monetary damages for the stolen items and insurance deductible and costs against the monies claimed by the Respondent as being due and owing for the construction project. 14. Credible testimony and evidence established that someone employed by NVD Flooring LLC did steal the missing items from the Complainants’ residence during the carpet installation. 15. There was no credible evidence that the Respondent knew or should have known that one or more of NVD Flooring LLC’s employees would steal personal items for the Complainants’ residence during the construction work performed by NVD Flooring LLC. 16. There was no credible evidence that there was any connection between the Respondent and NVD Flooring LLC other than the undisputed fact that the Respondent had subcontracted the actual carpet installation work to NVD Flooring LLC. 17. The credible evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the illegal activities of individuals employed by NVD Flooring LLC. 18. The parties’ dispute regarding the Complainants’ claim for a monetary offset against the balance due and owing to the Respondent is found to be a good faith dispute which will necessarily involve a monetary adjudication and which must be resolved in a civil court of competent jurisdiction. 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). 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). 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). 2. The credible evidence of record failed to support a finding that the Respondent committed a wrongful or fraudulent act.

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, August 24, 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