ALJDEC decisions subject to certification as final

2010A-24336131-ROC · Registrar of Contractors · 2010-09-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Larry Silver. 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 License No. K-31.234767-D issued by the Registrar of Contractors. 2. When the Complainant purchased an existing residence in the Phoenix area he noticed that there was a large crack in the block wall surrounding the rear yard of the residence. 3. Credible testimony and evidence established that the Complainant required the previous owners of the residence to retain a properly licensed contractor to properly correct the crack in the block wall. 4. There was no dispute that the Respondent is the licensed contractor that performed corrective work on the crack in the block wall prior to the Complainant’s occupation of the residence. 5. Credible testimony and evidence established that the Respondent completed the correction of the crack in the block wall of the residence and that the previous owners and the Complainant were all satisfied with the repair of the crack in the block wall that was performed by the Respondent. 6. Shortly after occupying the residence the Complainant noticed a new stair step crack in a fence panel of the block wall in excess of 1/8” and demanded that the Respondent return to the residence and properly correct the new crack in the block wall. 7. Pursuant to the Complainant’s request the Respondent returned to the Complainant’s residence and inspected the stair step crack in the fence panel in the block wall. The Respondent denied any responsibility for the stair step crack in the fence panel and asserted that the Respondent’s corrective work was performed on the other side of the block wall. 8. When the Respondent refused to correct the stair step crack in the fence panel in block wall the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 10. The assigned Agency Inspector then moved to close the complaint on the following basis: It is this Inspector’s opinion the contractor is not responsible for the stair-step cracking observed in the fence panel. There was no documentation to show that the previous owners hired him to make any corrections to the foundation of the wall. The proximity to the fence panel of the mature tree in the neighbor’s yard has created an adverse jobsite condition that the fence was not designed to withstand. The workmanship standards state that “Stair step cracks in mortar joints can result from normal settlement and do not necessarily indicate a structural problem.” 11. The Complainant disagreed with the Inspector’s opinion and requested an administrative hearing. 12. The Complainant’s request for hearing provides, in relevant part, as follows: Let me remind you that although I did not hire Mr. Fenceblock to repair the fence, the work was done on my behalf as a condition of sale. I specified that a licensed contractor be hired so that I could be confident the work would be done professionally. 13. The Complainant’s request for hearing also provides as follows: 14. You failed to mention in your letter that the standards go on to say: “Cracks 1/8” or more should be filled. If cracks exceed 1/8” or if crack extends across the block itself, a structural problem may exist. Contractor should determine cause of the crack and make appropriate repairs if necessary.” 15. The Respondent’s construction contract with the previous owners (Exhibit No. C-1) fails to state the actual construction work that was to be performed by the Respondent. 16. Credible testimony and evidence established that the Respondent did repair a large crack in the block wall and that the Respondent was paid the sum $623.53 for its work on the block wall. 17. Credible testimony and evidence established that there is a large mature tree in the neighbor’s yard in close proximity to the cracked fence panel in the block wall and that the large tree in the neighbor’s yard has created an adverse condition that is putting stress on Complainant’s block wall. 18. There was no credible evidence that the Respondent is, or should be, responsible for the stress problems in the Complainant’s block wall caused by the large tree in the neighboring yard. 19. There was no credible evidence that the Respondent agreed to warranty any construction work on the block wall other than the construction work that was actually performed by the Respondent. 20. The credible evidence of record is insufficient and fails to support a finding that the new stair step crack in the fence panel of the Complainant’s block wall has any relationship to the previous crack repair on the block wall that was performed by the Respondent. 21. The credible evidence of record is insufficient and fails to support a finding that that the Respondent’s previous corrective work on the Complainant’s block wall failed to comply with applicable workmanship and industry standards. 22. The credible evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the correction of the new stair step crack in the fence panel of the Complainant’s block wall. 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 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 his 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. §32-1154A, as charged in the Citation and Complaint. 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, September 7, 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