ALJDEC decisions subject to certification as final

10F-0272-ROC · Registrar of Contractors · 2010-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2010 at 10:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Dan Peterson. The Respondent appeared through its authorized representative, Michael Mallory. 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-06 License issued by the Registrar of Contractors. 2. The Respondent performed spa and pool maintenance work for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship and filed a formal Complaint against the Respondent, with the Registrar of Contractors. 4. The Complainant alleged that the Respondent’s failure to perform its maintenance work in a professional and workmanlike manner resulted in an imbalance of chemicals which caused holes in the heater manifold and core and discolored the new plaster in the spa. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and found that the Complainant had caused another contractor to correct the spa plaster and the problems with the spa heater prior to the onsite inspection. 6. The Inspector was unable to inspect the Respondent’s work and consequently was unable make a determination as to whether the Respondent was responsible for the alleged problems with the Complainant’s spa and heater. No Corrective Work Order Complainant was issued. 7. The Complainant seeks restitution for its costs of correcting the problems with the spa heater and the spa plaster in the sum of $2,827.46. 8. The credible testimony and evidence of record is found to be inadequate and fails to support a finding that the Respondent’s maintenance work caused the alleged problems with the spa heater and the spa plaster. 9. Credible testimony and evidence established that the Respondent was not given a reasonable opportunity to inspect and possibly correct the alleged problems with the spa heater and spa plaster after the complaint was filed. 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 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 its 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, March 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