ALJDEC decisions subject to certification as final

2010A-308472255-ROC · Registrar of Contractors · 2011-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Joe Yezzzi. 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 K-5 (No. 196128) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed grinding and polishing work on the Complainant’s existing concrete floor. 3. There was no dispute that the Respondent was a subcontractor for the general contractor for the remodeling construction project in the Complainant’s residence. 4. Several months after the completion of the remodeling project, the Complainant became increasingly dissatisfied with the finished appearance of the polished concrete floor in her residence and demanded that the Respondent correct the appearance of the polished concrete floor to her satisfaction. 5. When the Respondent failed to comply with the Complainant’s demand the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and moved to close the complaint without the issuance of a citation. 7. The Complainant disagreed with the Agency Inspector’s decision to close the complaint and requested an administrative hearing. 8. Credible testimony and evidence established that the Respondent contracted with the Complainant’s general contractor to perform grinding and polishing work on the Complainant’s existing concrete floor. 9. The Complainant asserted that the concrete floor is uneven and that there are spots of old paint still visible on the surface of the concrete floor. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that there is any old paint on the Complainant’s concrete floor. 11. There was no dispute that there are spots of old staining on the Complainant’s concrete floor. 12. Credible testimony and evidence established that the old staining has penetrated to an unknown depth in the concrete and that the complete removal of the old staining on the Complainant’s concrete floor would necessitate the removal of sections of the Complainant’s concrete floor. 13. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent contracted to remove, or is responsible for the removal, of the old concrete staining in the Complainant’s concrete floor. 14. Credible testimony and evidence established that the Respondent did not contract with the Complainant or the Complainant’s general contractor to level the Complainant’s concrete floor. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the leveling of the Complainant’s concrete floor. 16. The Complainant asserted that the Respondent failed to apply concrete dye to her concrete floor as part of the concrete grinding and polishing process. 17. Credible testimony and evidence established that the Respondent gave the Complainant the option of applying new concrete dye to the Complainant’s concrete floor as an extra cost option and that the Complainant declined the extra cost option. 18. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent was required to apply concrete dye to the Complainant’s concrete floor. 19. The Complainant asserted that the doorways in her residence are not properly finished because there are cracks in the concrete floor around the doorway thresholds and that the color of the concrete floor is not uniform around the doorway thresholds. 20. Credible testimony and evidence established that the Respondent was instructed by the general contractor for the construction project to only polish the concrete up to the edge of the thresholds because new thresholds would be installed in the future. 21. Credible testimony and evidence established that no new thresholds have been installed in the Complainant’s residence. 22. There was no credible evidence that the Respondent contracted or is responsible for the installation of new thresholds in the Complainant’s residence. 23. Credible testimony and evidence established that the Respondent is not responsible for the work of others and that the Respondent is not responsible for performing construction work beyond the scope of its contract with the general contractor for the construction project. 24. 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 industry standards for good and proper workmanship. 25. Credible testimony and evidence established that the Respondent’s grinding and polishing work on the Complainant’s existing concrete floor is within applicable industry and workmanship standards. 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. The Complainant failed to sustain her burden of proof to establish that the Respondent violated the applicable charged sections of the sate’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, February 18, 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