ALJDEC decisions subject to certification as final

2010A-23332731-ROC · Registrar of Contractors · 2011-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2011 at 8:00 a.m. APPEARANCES: The Complainants appeared through Philip King. The Respondent appeared through it attorney, James A. Woods. 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. 166223) 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 and with the Respondent’s failure to correct its work to their satisfaction despite their repeated requests that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests 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 April 20, 2010 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 relevant part, as follows: 5. Master bedroom, per plans, shows two A/C vents installed in the ceiling but as built, only one vent appears to be installed(contractor to correct by appropriate means. 6. Per plan home was to have two A/C units installed but instead has only one five ton unit installed and could possibly be causing hot and cold areas in the home( this inspector could not verify if hot and cold areas existed in the home but the plans do call for two A/C units, contractor to correct by the appropriate means. 7. There was no dispute that the remaining items set forth in the Complaint and the written Corrective Work Order had been corrected to within applicable workmanship and industry standards. 8. Undisputed credible testimony and evidence established that the parties’ written sales agreement (Exhibit No. C-2) provides, in pertinent part, as follows: A. Construction of Improvements. …. Meritage shall endeavor to cause the Improvements to be constructed in substantial conformance with the Plan. However, due to the nature of construction, Buyer understands and acknowledges that deviations and variations from the Plan may exist in the Home, including, without limitation, (i) substitution by Contractor of materials and equipment of substantially equal or better quality; (ii) minor style, lot orientation and color changes; (iii) minor variances in room and space dimensions and window, door and other improvement locations; and (iv) changes in the Plan as may be required by any state, federal, county or local governmental authority in order to accommodate Options requested by Buyer and approved by Meritage. Buyer acknowledges that renderings, floor plans and other drawings shown in the sales office for the Community and in sales brochures and other advertising material may not be drawn to scale. Buyer understands that the Home is not being custom built for Buyer, but rather is one home in a planned development that will likely contain many similar homes. …. Meritage shall have the right to make such changes to the Home and/or to make deviations from the Plan, and in materials and locations as Meritage deems appropriate. By acquiring title to the Home at Closing, Buyer shall be deemed to have agreed to accept the Home as constructed and subject to all changes and deviations which may exist from the Plan, and Buyer shall be deemed to have waived any and all right and claim against Meritage with respect to any such changes and deviations from the Plan except to the extent such changes and deviations are later conclusively determined to cause structural deficiencies in the Home. 9. Credible testimony and evidence established that the Respondent installed a five ton HVAC unit in the Complainants’ residence instead of a two smaller HVAC units which totaled five tons. 10. Credible testimony and evidence, produced at hearing, established that the single five ton unit is the substantial equivalence of the two smaller HVAC units which totaled five tons. No corrective action by the Respondent was shown to be necessary. 11. There was no dispute that the Respondent installed one large A/C vent in the Complainants’ master bedroom rather than two smaller A/C vents. 12. Credible testimony and evidence, produced at hearing, established that the larger A/C vent is the substantial equivalence of the two smaller A/C vents. No corrective action by the Respondent was shown to be necessary. 13. Credible testimony and evidence, presented at hearing, established that the A/C unit and associated duct work in the Complainants’ residence is appropriately sized for the Complainants’ residence and that the installation and functioning of the A/C unit and associated duct work is within applicable industry and workmanship standards. 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. The Complainants failed to sustain their burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154 (A), 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, January 7, 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