ALJDEC decisions subject to certification as final

2010A-308472509-ROC · Registrar of Contractors · 2011-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through his attorney, Brian W. LaCorte. The Respondent appeared through its authorized representative, Thomas May. 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 KB-2 (No. 250461) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant retained the Respondent to perform the concrete work on a new room addition that the Complainant was constructing as an owner-builder. 3. There was no dispute that the Respondent performed the agreed upon concrete work and that the Complainant fully paid the Respondent for the completed concrete work. 4. Credible testimony and evidence established that the Respondent’s concrete work was inspected and approved by the local building authority. 5. There was no dispute that the Complainant was dissatisfied with the variances in the width of the new concrete work. 6. Credible testimony and evidence established that the Complainant contacted the Respondent, and the Respondent performed an onsite inspection of the new concrete work at the Complainant’s residence. 7. There was no dispute that the Complainant and the Respondent then entered into a Settlement Agreement wherein the Respondent paid the Complainant the sum of $250.00 instead of performing corrective work on the new concrete work. 8. The Complainant then retained an alternative contractor to perform corrective action on the new concrete at a cost of $425.00. 9. There was no dispute that the parties’ Settlement Agreement was the product of knowing and voluntary action by each of the parties involved. 10. The parties are found to be fully bound by the terms of their Settlement Agreement wherein the Respondent paid the Complainant an agreed upon sum of money instead of performing corrective action on the new concrete work. 11. Credible testimony and evidence established that shortly after the room addition was completed, the Complainant noticed that the new concrete was allowing moisture to penetrate into the interior of the new room addition. 12. The Complainant removed the carpeting in the new room addition and visually observed holes or honeycombs in the new concrete that were allowing exterior moisture to penetrate into the interior of the new residence. 13. The Complainant was dissatisfied with the condition of the new concrete and retained an alternative contractor to properly correct the new concrete for the room addition. 14. Credible testimony and evidence established that the Complainant paid the alternative contractor the sum of $1,400.00 to perform the corrective action on the new concrete. 15. The correction of the new concrete work in the Complainant’s residence has been fully completed and no further corrective action on the concrete is required. 16. The Complainant then filed a formal complaint against the Respondent with the Registrar of Contractors seeking reimbursement for the cost of repair plus the Complainant’s damages for lost floor space, i.e., square footage, and the cost of the homeowner’s time involved in the correction process. 17. The Complainant seeks total damages in the sum of $3,075.00. 18. There was no onsite inspection at the Complainant’s residence because the complained of concrete work had already been corrected by an alternative contractor. 19. Credible testimony and evidence established that the Respondent was not aware of the leaking problem with the new concrete at the Complainant’s residence until the complaint at issue was filed with the Registrar of Contractors. 20. Credible testimony and evidence established that the Respondent was not given an opportunity to correct or even inspect the concrete work at issue until after the concrete had been corrected by an alternative contractor. 21. The Complainant’s claim for monetary damages will necessarily involve a monetary adjudication and can be resolved in a civil court of competent jurisdiction. 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 a 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. A.R.S. § 32-1155 (C) provides as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor’s work has been subject to neglect, modification or abnormal use. 5. Credible testimony and evidence supported a finding that the Respondent was not provided an opportunity to inspect the complained of concrete work within fifteen days after receiving notice from the Registrar as required by A.R.S. § 32-1155 (C) and that the Respondent’s concrete work has been modified by an alternative contractor. As a consequence thereof, no violations of the charged provisions of A.R.S. §32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154 (A) (3) (Failure to perform work in a professional and workmanlike manner) are supportable. 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 14, 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