ALJDEC decisions subject to certification as final

10F-1986-ROC · Registrar of Contractors · 2010-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Steve Buchanan. The Respondent appeared through its authorized representative, Jason Law. 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. Respondent is the holder of License No. 215880, a Class K-21 License, issued by the Registrar of Contractors. 2. This is a commercial matter where the Respondent performed extensive landscaping work on a commercial project for the Complainant. 3. There was no dispute that one of the large date palm trees planted by the Respondent was blown over during a windstorm. 4. There was no dispute that the Respondent re-planted the blown over date palm tree and that the tree failed to survive the trauma of being blown over during the windstorm. 5. Credible evidence and testimony established that when the Respondent discovered that the Complainant’s electrical subcontractor had dug around the tree to repair a damaged electrical conduit line the Respondent refused to replace the dead date palm tree. 6. The Complainant then filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 8. The Agency Inspector moved to close the complaint on the following basis: Due to external circumstances, some caused by others and no evidence of any workmanship faults by the contractor, Trinity Services Inc.-(No action is required by the contractor. 9. The Complainant disagreed with the Agency Inspector’s decision and requested an administrative hearing. 10. There was no dispute that none of the other large date palm trees installed by the Respondent were damaged during the same windstorm which caused the dead date palm tree to be blown over. 11. There was no dispute that the Complainant’s electrical subcontractor did dig around the dead palm tree to repair broken conduit prior to the windstorm. 12. There was insufficient credible evidence presented to support a finding that the Respondent had caused the damage to the electrical conduit. However, the Respondent did agree that the Respondent may have caused the damage to the electrical conduit. 13. Credible testimony and evidence established that the Respondent was not contacted by the Complainant to perform the digging around the dead date palm tree. 14. Credible testimony and evidence established that the Respondent would have performed any necessary digging around the date palm tree had the Complainant notified the Respondent of the problem with the electrical conduit that the Respondent may have damaged. 15. The credible testimony and evidence of record is found to be insufficient and fails to support a finding that the Respondent is responsible for the replacement of the dead date palm tree.

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 its 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 does not sufficiently sustain a finding of a violation by the Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation and Complaint.

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, May 6, 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