ALJDEC decisions subject to certification as final

2010A-21676019-ROC · Registrar of Contractors · 2010-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 24, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Chris Mortensen. 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 License No. K-21.217301-D issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed landscaping work for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to her satisfaction despite her repeated requests that the Respondent do so. 4. When the Respondent failed to comply with the Complainant’s repeated requests, 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. The Agency Inspector then moved to close the Complaint on the following basis: It is this Inspector’s opinion, that Complainant failed to provide evidence to confirm that the contractor did not fulfill the terms of contract/estimate provided to the homeowner by the contractor and Complainant did state and or agree on numerous occasions at the jobsite inspection, that the contractor has been at the property on numerous occasions to satisfy Complainant’s landscaping needs. 6. The Complainant disagreed with the Agency Inspector’s action and requested an administrative hearing. 7. The credible evidence of record is found to be insufficient to support a finding that the Respondent violated the terms of the parties’ construction agreement. 8. The credible evidence of record is found to be insufficient to support a finding that the Respondent’s landscaping work failed to comply with applicable workmanship and industry standards. 9. There was no credible evidence that the Respondent violated the charged provisions of A.R.S. §32-1154A(13) (NAMELY A.R.S. § 32-1124(B) and A.R.S. § 32-1158.

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 her 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 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, May 26, 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