ALJDEC decisions subject to certification as final

10F-0250-ROC · Registrar of Contractors · 2010-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Roger Decker. 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 B-05 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a swimming pool and spa for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship on the spa and filed a formal complaint against the Respondent with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection.

5. The assigned Inspector moved to close the complaint on the following basis: It is the opinion of this Inspector that the spa was properly constructed and functions as intended. 6. The Complainant disagreed with the Inspector’s decision to move to close the complaint and requested an administrative hearing. 7. The Complainant is very dissatisfied with the installation of the spa jets in the new spa and testified that the PVC tubing for the spa jets was not properly installed. 8. 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 is within applicable industry standards for good and proper workmanship. 9. The credible testimony and evidence presented at hearing is insufficient and fails to support a finding that the PVC tubing installed in the Complainant’s spa fails to comply with applicable workmanship and industry standards. No corrective action by the Respondent was shown to be necessary. 10. The credible evidence of record is insufficient and fails to support a finding that the Complainant’s spa is improperly constructed. 11. There was no credible evidence that the Complainant’s spa functioned improperly.

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 his 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 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, March 15, 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