ALJDEC decisions subject to certification as final

2010A-23352442-ROC · Registrar of Contractors · 2011-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondents appeared through their authorized representative, Allie Laude’. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. The Class KB-2 (No. 218256) issued to Respondent Creekside Builders LLC dba Creekside Restoration LLC was voluntarily canceled on August 6, 2009. 2. Respondent Creekside Builders LLC dba Creekside Restoration LLC is the holder of a Class KB-1 (No. 257857) License issued by the Registrar of Contractors. 3. There was no dispute that Respondent Creekside Builders LLC dba Creekside Restoration LLC performed fire restoration work on the Complainant’s residence. 4. The Complainant was dissatisfied with the Respondents’ workmanship and with the Respondents’ failure to correct the Respondents’ work to the Complainant’s satisfaction despite his repeated demands that the Respondents do so. 5. When the Respondents failed to comply with the Complainant’s repeated demands, the Complainant filed a formal Complaint against the Respondents with the Registrar of Contractors. 6. The Registrar of Contractors designated the Complainant’s Complaint as Case No. 2010-23352442 (formally 10-2335) against the KB-1 (No. 257857) License of Creekside Builders LLC dba Creekside Restoration (LLC) and as Case No. 2010-[number redacted] against the KB-2 (No. 218256) License of Creekside Builders LLC dba Creekside Restoration (LLC). 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on February 8, 2010, issued a written Corrective Work Order directing the Respondents to perform designated corrective work on the Complainant’s residence. 8. The Complainant then filed an amendment to his complaint on April 9, 2010 alleging that the Respondent had caused a drainage problem in his residence. 9. Pursuant to the filing of the April 9, 2010 amendment to the complaint, the assigned Agency Inspector performed an additional onsite inspection and on March 30, 2010, issued an Addendum to the February 8, 2010 Corrective Work Order. The March 30, 2010 Addendum to the Corrective Work Order provides as follows; Corrective Work Order(-Addendum No action required by the contractor for the following, 1. The clog in the laundry room and main drain line for the house is not the responsibility of the respondent. This was not in the scope of work for the contractor to do. The plumber, in good faith ran a camera in the main drain and said it was tree roots that were clogging the drains. 10. The Complainant disagreed with the contents of the March 30, 2010 Addendum to the Corrective Work Order and requested an administrative hearing. 11. The Registrar of Contractors forwarded Case Nos. 2010-23352442 and 2010- [number redacted] to the Office of Administrative hearings, an independent agency, for a consolidated evidentiary hearing. 12. The assigned Agency Inspector performed a pre-hearing inspection before the consolidated hearing of these matters and found that the Respondents had fully complied with the terms of the February 8, 2010 Corrective Work Order. 13. Credible testimony and evidence, presented at hearing, established that the Respondents fully complied with the terms of the February 8, 2010 Corrective Work Order. 14. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent performed any construction work on the Complainant’s drainage system. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the fire restoration work performed by the Respondents caused or could have caused the drainage problems the Complainant is experiencing with his residence as alleged in the Complainant’s April 9, 2010 amendment to his complaint against the Respondent. 16. The credible evidence of record is insufficient and fails to support a finding that the Respondents are responsible for the correction of the drainage problems that the Complainant is experiencing in his residence.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over the Respondents and the subject matter in these consolidated cases. 2. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondents 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). 3. 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). 4. 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). 5. The Complainant failed to sustain his burden of proof to establish that the Respondents 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 Respondents of the provisions of A.R.S. §32-1154 (A), as charged in the Citations and Complainants at issue. RECOMMENDed orders DOCKET No. 2010A-23352442-ROC In view of the foregoing, it is recommended that the Citation and Complaint against the Class KB-1 (No. 257857) of Respondent Creekside Builders LLC dba Creekside Restoration (LLC) be dismissed on the effective date of the Order issued in this matter. DOCKET No. 2010A-[number redacted]-ROC In view of the foregoing, it is recommended that the Citation and Complaint against the Class KB-2 (No. 218256) of Respondent Creekside Builders LLC dba Creekside Restoration (LLC) be dismissed on the effective date of the Order issued in this matter. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification.

Done this day, January 3, 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