ALJDEC decisions subject to certification as final

2010A-2004360-ROC · Registrar of Contractors · 2010-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Maryann Evanoski. The Respondent appeared through its attorney, Terry Esser. 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 a Class B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent contracted to perform extensive fire restoration work on the Complainants’ residence. 3. The Complainant became increasingly dissatisfied with the Respondent’s lack of progress on the construction project and with the Respondent’s failure to correct and complete its construction work to their satisfaction despite their repeated requests that the Respondent do so. 4. When the parties were unable to resolve their differences, 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 on-site inspection and on November 16, 2009, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The Corrective Work Order provides, in pertinent part, as follows: 1. Complaint of: …Paint sealer sprayed over fireplace and chimney, contractor to correct by appropriate means. 2. Complaint of: “did not complete work.” Jobsite found work not completed. Contractor to complete work. 3. Complaint of: “return $20,000.” Money not an ROC matter. No action required. 7. Credible testimony and evidence established that the Respondent has paid an alternative contractor to correct the fireplace and chimney and that the fireplace and chimney have now been corrected to within applicable workmanship and industry standards. 8. Credible testimony and evidence established that the Respondent attempted to gain access to the Complainants’ residence to comply with the terms of the Corrective Work Order and complete the construction work, and that the Complainants denied reasonable access to the Respondent. 9. Credible testimony and evidence established that the Complainants have retained an alternative contractor which is in the process of completing the reconstruction of their fire damaged residence. No further corrective or completive action by the Respondent is possible. 10. The Complainants’ actions, in denying reasonable access to the Respondent and precluding the Respondent from a reasonable opportunity to comply with the terms of the Corrective Work Order and properly complete the construction project, are found to be unreasonable. 11. Credible testimony and evidence established that the parties are now involved in a monetary dispute. The Respondent’s position in this monetary dispute is found under all of the circumstances to have been asserted in good faith. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. 12. Based upon the finding that the Complainants denied the Respondent a reasonable opportunity to comply with the terms of the Corrective Work Order and complete the construction project at issue, the credible evidence of record is insufficient and fails to support a finding that the Respondent is in violation of the charged provisions of A.R.S. § 1154A, as set forth in the Citation at issue.

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 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 supported findings that that the Complainants denied the Respondent reasonable access to their residence and precluded the Respondent from complying with the terms of the Corrective Work Order by completing the reconstruction of their residence.

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 23, 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