ALJDEC decisions subject to certification as final

2010A-27675385-ROC · Registrar of Contractors · 2011-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Mary Grace McNear. The Respondent appeared through its authorized representative, Mark Bowers. 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-5 (No. 020286) License issued by the Registrar of Contractors. 2. There was no dispute that the Respondent performed a remodeling project on the Complainants’ existing swimming pool for the sum of $15,539.00. 3. There was no dispute that as a part of the swimming pool remodeling project the Respondent chipped out the existing swimming pool plaster and re-plastered the Complainants’ swimming pool. 4. The Complainants were extremely dissatisfied with the appearance of the new swimming pool plaster and complained to the Respondent. 5. There was no dispute that the Respondent then caused the Respondent’s plastering subcontractor to remove and replace the unsatisfactory swimming pool plaster. 6. The Complainants were dissatisfied with the appearance of the plaster installed in the second re-plastering of their swimming pool and requested that the Respondent remove and replace the unsatisfactory swimming pool plaster. 7. When the Respondent refused to comply with the Complainants’ request, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection. 9. The Agency Inspector moved to close the complaint on the following basis: It is the opinion of this inspector that the swimming pool plaster exhibits normal variations that would be expected in a hand-applied, hand-troweled product; protruding inlet and outlet fittings repaired at the time of the inspection. 10. The Complainants disagreed with the assigned Inspector’s determination and requested an administrative hearing. 11. There was no dispute that the Complainants drained the swimming pool before the onsite inspection. 12. Credible testimony and evidence established that the Complainants drained the swimming pool at their on volition without any type of request or instruction from the assigned Agency Inspector to do so. 13. There was no dispute that the assigned Agency Inspector conducted his onsite inspection of the Complainants’ swimming pool during daylight hours. 14. The Complainants assert that onsite inspection should have been performed at night with the swimming pool light on so that the Agency Inspector could see the imperfections in the swimming pool which are allegedly readily apparent at night with the swimming pool light on. 15. Credible testimony and evidence established that the Registrar of Contractors conducts all swimming pool inspections in the daylight during normal work day hours. 16. Credible testimony and evidence established that the Registrar of Contractors does not apply perfection standards when judging workmanship. The same industry standards are to be applied whether the home is an expensive home or a “lower-end” home and that standard, as applied by the Registrar, is whether the workmanship involved is within applicable workmanship and industry standards for good and proper workmanship. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the swimming pool plaster in the Complainants’ swimming pool fails to comply with applicable workmanship and industry 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 credible 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, April 20, 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