ALJDEC decisions subject to certification as final

2010A-25735072-ROC-rhg · Registrar of Contractors · 2011-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Bill Miller. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent had fully complied with the terms of the Registrar’s March 1, 2011 Order. Evidence and testimony were presented, and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provides, in pertinent part, as follows: IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties’ may offer evidence and testimony as to whether or not Respondent has complied with the terms and conditions of the Registrar’s March 1, 2011 Order issued in this matter. If it is determined that Respondent has failed to fully comply with the Registrar’s written directives, absent unreasonable interference or denial of access by Complainant, then Respondent’s B.184455-R License shall be subject to the immediate imposition of discipline. If it is determined that Complainant has unreasonably interfered or denied access to Respondent or its representatives in their attempt to comply with the Registrar’s March 1st Order, then Respondent’s license shall not be disciplined and the matter shall be closed as Respondent having fully complied with the terms of the Registrar’s Order. A Notice of Compliance Hearing shall be issued in due course. IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing, an assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing. Note: Normal “wear and tear” will not be considered deficient workmanship on the part of Respondent. The repairs were allegedly performed in April 2011, and any inspection shall take into account normal “wear and tear.” Further, Complainant is precluded from raising any new issues at the Compliance Hearing unrelated to the repair work that Respondent performed.

2. The Complainant asserted that there is a small area of grout cracking in the dining room area of the residence at issue and that she was afraid that the grout cracking was indicative of a more substantial problem. 3. Credible testimony and evidence established that the residence at issue is now a rental unit, and the Complainant at the time of the hearing was in the process of removing her tenants from the rental property. 4. Credible testimony and evidence established that the Respondent has been unable to gain reasonable access to the residence from the Complainant’s tenants to perform an on-site inspection of the alleged grout cracking in the dining area of the rental unit. 5. Credible testimony and evidence established that the grout cracking in a tile floor in a rental unit is a normal and expected “wear and tear” type of item. 6. .Credible evidence presented at hearing adequately established that the corrective actions set forth in the Registrar’s March 1, 2011 Order have been fully completed to within applicable workmanship and industry standards. 7. Credible testimony and evidence presented during the compliance hearing established that the Respondent has fully complied with the terms of the March 1, 2011 Order of the Registrar. CONCLUSIONS OF LAW 1. The Respondent bears the burden of demonstrating by a preponderance of the evidence that the Respondent has fully complied with the terms of the Registrar’s March 1, 2011 Order. 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). It “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). 3. The Respondent sustained its burden of proof by a preponderance of relevant, substantial and probative evidence that it has fully complied with the terms of the Registrar’s March 1, 2011 Order. RECOMMENDed order In view of the foregoing, it is recommended that this matter shall be closed as the Respondent having fully complied with the terms of the Registrar’s March 1, 2011 Order. 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, December 21, 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