ALJDEC decisions subject to certification as final

2009A-53675791-ROC · Registrar of Contractors · 2010-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 28, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Sterling Threet. 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 License C39R-126405-R issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the parties entered into a written preventive maintenance agreement wherein the Respondent agreed to perform one inspection per year at the Complainant’s residence and the Complainant paid the Respondent $1,500.00. 3. Credible testimony and evidence established that the Respondent performed one inspection at the Complainant’s residence and performed various maintenance functions on the Complainant’s three HVAC systems. 4. There was no dispute that approximately six months later the Complainant requested a second inspection. When the Respondent refused to perform a second inspection the parties exchanged bitter words and the Complainant filed a civil complaint against the Respondent with a civil court of competent jurisdiction and a formal complaint against the Respondent with the Registrar of Contractors. 5. There was no dispute that the parties had entered into several previous preventive maintenance agreements and that all of the parties’ previous maintenance agreements provided that the Respondent was to perform maintenance inspections on the Complainant’s three HVAC systems twice a year. 6. There was no dispute that the civil court issued a judgment against the Respondent requiring the Respondent to pay the Complainant $1,500.00. 7. Credible testimony and evidence established that the Respondent has paid the Complainant $1,500.00 and that the Respondent has fully satisfied the civil judgment issued against it. 8. Credible testimony and evidence established that the Respondent has performed the one maintenance inspection set forth in the parties’ preventive maintenance agreement. 9. There was no credible evidence of a wrongful or fraudulent act by the Respondent. 10. The credible evidence of record is insufficient and fails to support a finding that the Respondent abandoned the parties’ written preventive maintenance agreement. 11. The credible evidence of record is insufficient and fails to support a finding that the Respondent refused to perform work in accordance with the parties’ preventive maintenance agreement. 12. There was no credible evidence that the Respondent failed to perform its work in a professional and workmanlike manner. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that 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 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, June 1, 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