ALJDEC decisions subject to certification as final

2010A-308472901-ROC · Registrar of Contractors · 2011-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, David Chapman. 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 (229882) License issued by the Registrar of Contractors. 2. The Complainant’s residence suffered wind damage, and the Complainant’s insurance company gave the Complainant a check in the sum of $3,138.62 to repair the wind damage to the Complainant’s residence. 3. The Complainant then contacted the Respondent, and the parties entered into a written construction agreement wherein the Respondent agreed to perform wind damage repair work on the Complainant’s residence for the total sum of $3,700.00. 4. Pursuant to the terms of the parties’ written agreement, the Complainant gave the Respondent the check the Complainant had received from his insurance company in the sum of $3,138.62. 5. The parties’ written agreement provides, in relevant part, as follows: DESCRIPTION OF THE PROJECT: Repair existing Roof on West side of Mobile Home, where porch overhang meets Mobile Home Roof. Porch over hang is not built to code and is leaking where porch overhang Roof meets Mobile Home Roof, complete length of roof approximately 52 feet. By 2 foot wide plywood and roofing material to be replaced. Approximately 105 square feet. On the south west side of Porch overhang approximately 40 square feet of rolled roofing has to be replaced, and reattach fascia board on south west side of porch overhang. 6. The Respondent then deposited the check in the Respondent’s bank account. 7. Credible testimony and evidence established that a new employee at the bank inadvertently mishandled the check from the Complainant’s insurance company and that the check was returned to the Respondent marked as NSF because it was not properly indorsed. 8. Credible testimony and evidence established that the problem with the check was caused by a simple inadvertent error by an inexperienced bank teller. 9. Credible testimony and evidence established that neither party had anything to do with the fact that the first insurance check was returned as being NSF. 10. Credible testimony and evidence established that the parties had initially blamed each other for the problems with the insurance check and that the parties had exchanged heated words at the construction site. 11. Following the heated verbal exchange regarding the NSF check at the construction site and during the course of construction, both parties demonstrated an ongoing inability to effectively communicate with each other. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent was responsible for the heated verbal exchange at the construction site. 13. There was no dispute that the Complainant’s insurance company quickly issued a replacement check to the Complainant and that the Respondent was then paid the $3,138.62. 14. The Respondent then performed the agreed upon construction work on the Complainant’s residence. 15. The Complainant was dissatisfied with the Respondent’s workmanship and filed a formal Complaint against the Respondent with the Registrar of Contractors. 16. Upon receiving notice of the formal Complaint, the Respondent returned to Complainant’s residence and completely removed all of the roofing material that the Respondent had previously installed on the Complainant’s residence and then replaced it with new roofing material. 17. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 18. The Respondent’s construction work on the Complainant’s residence had already been removed and replaced prior to the onsite inspection. 19. On May 28, 2010, the assigned Agency Inspector conducted an onsite inspection and moved to close the Complaint. No citation was issued. 20. The Complainant disagreed with the assigned Agency Inspector’s determination to close the Complaint and requested an administrative hearing. 21. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s construction work on the Complainant’s residence failed to comply with applicable industry and workmanship standards. 22. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s construction work on the Complainant’s residence failed to comply with the terms of the parties’ written construction agreement. 23. The credible testimony and evidence of record is insufficient and fails to support a finding that the construction work performed by the Respondent on the Complainant’s residence requires any corrective action by the Respondent. 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 his burden of proof to establish that the Respondent violated the applicable charged section 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) (3), namely rule A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner), 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 7, 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