ALJDEC decisions subject to certification as final

2009A-62516663-ROC · Registrar of Contractors · 2011-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 18, 2011, at 8:00 a.m. This matter was held open until September 19, 2011, to allow the parties sufficient time to file their memorandums. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through . 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 (No. 206612) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainants purchased a new residence constructed by the Respondent. 3. The Complainants were dissatisfied with the Respondent’s workmanship on their new residence and complained to the Respondent. 4. When the Respondent failed to correct its workmanship to their satisfaction, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on August 14, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The parties were in dispute as to whether the Respondent had fully complied with the terms of the Corrective Work Order. 7. The assigned Agency Inspector conducted a pre-hearing inspection on August 17, 2011. Based upon that inspection, he determined that the Respondent had fully complied with the terms of the Corrective Work Order. 8. There was no dispute that during the pre-hearing inspection, the Complainants removed a portion of their upstairs carpeting to show the assigned Agency Inspector two small shallow areas in the wood subfloor. 9. Credible testimony and evidence established that neither the assigned Agency Inspector nor the Respondent’s representatives were allowed to inspect the Complainant’s second story wood subflooring to examine alleged problems with the subfloor until the day before the hearing scheduled for this matter. 10. Credible testimony and testimony established that the Respondent had repeatedly attempted to gain access to the Complainant’s second story subfloor and had repeatedly offered to correct any defects that may have been found during the Respondent’s inspection. 11. Credible testimony and evidence established that the Complainants repeatedly denied access to the Respondent based upon their disagreement with the Respondent’s proposed method of correction. 12. The Complainants’ denial of access is found to be an unreasonable denial of access which prevented the Respondent from performing any corrective action that may have been required on the Complainants’ second story subfloor prior to the hearing of this matter. 13. The credible testimony and evidence of record is insufficient and does not support a finding that the subfloor for the second story floor in the Complainants’ residence fails to comply with applicable workmanship and industry standards. 14. Credible testimony and evidence established that the Respondent fully complied with the terms of the Corrective Work Order that was issued in this matter. 15. The credible evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes in this matter. 16. The Respondent renewed its motion to dismiss based upon the alleged expiration of the applicable two year statute of limitations in this matter. 17. The Registrar’s Order of November 10, 2010, provides, in pertinent part, as follows: Further, the last sentence of A.R.S. § 32-1155(A), which specifically references the earlier date of the close of escrow or actual occupancy did not go into effect until September 19, 2007, subsequent to the date of contract at issue. Such legislative change is not to be applied retroactively. See A.R.S. § 1-244 (no statute is to apply retroactively unless expressly declared therein). 18. The credible testimony and evidence of record, including the post hearing memorandums submitted by the Respondent, are insufficient and fail to support a finding that the Registrar’s Order of November 10, 2010, should be reversed or altered and that the Respondent’s motion to dismiss based upon the expiration of the applicable statute of limitations should be granted. 19. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 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). 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. Credible testimony and evidence established that the Respondent has fully complied with the terms of the Corrective Work Order issued in this matter and has fully complied with the provisions of A.R.S. § 32- 1154 (A) (23). 5. The credible testimony and evidence of record was insufficient and fails to support a finding that the Respondent violated the charged provisions of A.R.S. § 1154 (A) (2) (departure from or disregard of plans, specifications, or building codes). 6. Credible testimony and evidence established that the assigned Agency Inspector has inspected the Respondent’s corrective work on the Complainants’ residence and found that the Respondent’s construction work on the Complainants’ residence now complies with the provisions of A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (requirement to perform work in a professional and workmanlike manner). 7. There being no violation, this matter should be dismissed. 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, September 29, 2011.

/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