ALJDEC decisions subject to certification as final

2010A-308472242-ROC · Registrar of Contractors · 2010-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. 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 The Respondent’s Class K-65 (No. 147818) License was revoked on March 9, 2010 by the Registrar of Contractors. 2. This is a residential matter where the Respondent supplied and installed replacement windows in the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s unwillingness to properly correct its work to within applicable workmanship and industry standards. 4. When the Respondent refused to correct the unworkmanlike installation of the new windows, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. On May 12, 2010, the assigned Agency Inspector issued a letter to the Complainant which provides, in relevant part, as follows: The license of the above referenced respondent was revoked on 3/9/10. You must request in writing, an administrative hearing if you wish to pursue this matter. 6. On May 19, 2010 the Registrar of Contractors received the Complainant’s request for an administrative hearing. 7. Credible testimony and evidence established that the Respondent acknowledged the unacceptable damage to the interior surface of the new windows in the Complainant’s residence and that the Respondent orally agreed to properly correct the damage to the new windows in a prompt and workmanlike manner. 8. There was no dispute that the Respondent failed to comply with its agreement to properly correct the unworkmanlike installation of the Complainant’s windows. 9. Undisputed credible testimony and evidence established that the Respondent damaged the interior surface of the Complainant’s window frames by inadvertently smearing sealant all over the inside of the stain grade window frames. 10. There was no dispute that sealant was not supposed to be smeared over the interior surface of the stain grade window frames. 11. Credible testimony and evidence established that the interior surfaces of the new window frames in the Complainant’s residence can not be properly stained because of the damage caused by the Respondent’s improper workmanship. 12. Undisputed credible testimony and evidence established that the new windows in the Complainant’s residence were not installed in a professional and workmanlike manner and that the new windows now require proper repair or replacement. 13. Undisputed credible testimony and evidence established that the Respondent abandoned the Complainant’s construction project, leaving the new windows in the Complainant’s residence in an unworkmanlike, unsightly and incomplete condition. 14. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

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 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. Undisputed credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment) and A.R.S. § 32-1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner.) RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. 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 13, 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