ALJDEC decisions subject to certification as final

2010A-20094122-ROC · Registrar of Contractors · 2010-06-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Danny Hoover. 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 C-21 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a new water feature in the Complainant’s yard. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to his satisfaction despite his repeated demands that the Respondent do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands the Complainant 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 issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s water feature. 6. There is no dispute that the Respondent did perform corrective work in response to the Corrective Work Order. However, the Complainant is still very dissatisfied with various portions of the Respondent’s construction work on the Complainant’s new water feature. 7. Although the Complainants concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of the new water feature are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. 8. The Registrar of Contractors does not apply perfection standards when judging workmanship. The standard as applied by the Registrar is whether the workmanship involved is within applicable industry standards for good and proper workmanship. 9. Credible testimony and evidence established that the Respondent has fully complied with the terms of the Corrective Work Order and that the Respondent’s workmanship on the Complainant’s water feature now complies with applicable industry standards for good and proper workmanship. 10. The parties are also embroiled in a dispute regarding alleged overcharges. Credible testimony and evidence established that the Complainant paid the alleged overcharges a considerable period of time before he filed the complaint at issue. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is now due and owing to the Complainant from the Respondent for the alleged overcharges The Respondent’s position in this monetary dispute is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that a liquidated sum is owed to the Complainant for the alleged overcharges.. 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. Credible testimony and evidence supported findings that establish that the Respondent has fully complied with the terms of the Corrective Work Order and that the Respondent’s work on the Complainant’s water feature now complies with applicable industry standards for good and proper workmanship. .

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this matter shall 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 24, 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