ALJDEC decisions subject to certification as final

2010A-308473235-ROC-rhg · Registrar of Contractors · 2012-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2012 APPEARANCES: Complainant Hayden Harris appeared on his own behalf. Alan Miner appeared on behalf of Respondent A Miner Contracting, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent A Miner Contracting, Inc. (“Miner”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Miner is the holder of a Class A license (No. 079027) issued by the Registrar of Contractors (“ROC”). Alan Raymond Miner is an officer of Miner and its qualifying party. 2. On May 19, 2010, Complainant Hayden Harris filed a complaint dated March 24, 2010, against Miner with the ROC alleging that Miner, “had an unrepaired, unmarked sink hole in street that we hit and had our vehical [sic] damaged. A-Miner failed to repair vehical [sic] as City of Prescott requested.” 3. At hearing, Mr. Harris testified that Miner had been working in the area and left an open pothole that the Harrises hit while driving in January 2010. Mr. Harris alleged that the vehicle sustained damage. Mr. Harris testified that the driver’s side front tire needed to be replaced and that he paid Discount Tire $50.00 for the replacement of the tire because he carried road hazard replacement insurance. Mr. Harris further testified that the steering stabilizer was damaged. Mr. Harris did not provide photographs of the damage or the pothole. Mr. Harris testified that because the estimates for the repairs were high, he and a friend repaired the vehicle. 4. Jana Harris testified that Mr. Harris drove the vehicle home from the site of the pothole and that AAA towed the vehicle to Discount Tire. However, the Harrises do not have a receipt for the towing of the vehicle. On May 19, 2010, Mrs. Harris filed a claim in the Small Claims division of the Yavapai County Court. See Exhibit C10. The amount of the claim was $1,336.37. On November 5, 2010, the Harrises obtained a Small Claims Division Judgment against Miner in the amount of $126.54, representing the amount the Harrises paid for the replacement of the tire and court costs. See Exhibit C17. On November 30, 2010, Miner tendered a check to the Harrises in the amount of $126.54. See Exhibit C18. As of the hearing date, the Harrises had not cashed the check because according to Mr. Harris, the check proves the existence of the pothole. 5. The evidence of record established the following additional salient facts: a. On May 19, 2010, almost four months after the alleged incident, the Harrises filed a claim with the City of Prescott; b. There were no witnesses to the alleged incident, nor was there a police report until March 25, 2010, when Mrs. Harris went to the police station to request that a report be taken. Officer Brazell authored a report that he took from Mrs. Harris, see Exhibit R3; c. The estimate obtained by the Harrises for the repair of the vehicle was dated April 15, 2010, and was obtained from a client of the Harrises that owed the Harrises monies for seal coating a parking lot, establishing that the Harris’ business, SW Paving and Sealcoating, is a competitor of Miner, see Exhibit C8; d. The Discount Tire invoice notes “RR” in the “comment” section. Mr. Miner credibly testified that “RR” references the rear right tire, not the front left tire as testified to by Mr. Harris; and e. The Harrises did not offer to show Miner the alleged damage at any time. 6. Mr. Miner testified that he has repeatedly requested from the Harrises any evidence establishing that a hole in the pavement existed on the day in question where they say one existed. Mr. Miner testified that the Harrises do not have any photos of the pothole or the damage to the vehicle, any witness statements, or a police report from the day in question, and that there have been no other complaints about the existence of a pothole. Mr. Miner testified that it was months after the alleged incident before the Harrises notified him of the alleged damages, that the Harrises obtained an estimate three and a half months after the alleged incident, that the police report is not contemporaneous with the alleged incident, and that there is no evidence that any repairs were made to the vehicle. CONCLUSIONS OF LAW In this proceeding, Mr. Harris bears the burden to prove, by a preponderance of the evidence, that Miner is subject to discipline for a violation of A.R.S. § 32-1154(A)(3) as charged by the ROC in its September 14, 2010 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). In this case, the Harrises obtained a small claims judgment against Miner. However, a small claims judgment has no collateral effect on Miner in a subsequent judicial or administrative proceeding.[1] The legislature has established small claims courts to decide civil matters involving claims for less than $2,500.00.[2] Procedural rights and safeguards are severely circumscribed in small claims court: there is no right to representation by an attorney;[3] there is no right to appeal a judgment;[4] no pre-trial discovery is available;[5] the rules of evidence and procedure do not apply;[6] and jury trials are prohibited.[7] Mr. Harris wholly relies in this matter on the judgment in the small claims action when he asks the ROC to penalize Miner’s license. The Administrative Law Judge concludes that such reliance is misplaced, and Mr. Harris failed to meet his burden of proof as to the ROC’s charge. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Miner with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible evidence of record failed to establish that Miner failed to perform its work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Therefore, the Administrative Law Judge concludes that Miner is not in violation of A.R.S. § 32-1154(A)(3). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Miner’s license. The ROC’s Citation in Case Number 2010-[number redacted]- ROC-rhg, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Miner’s license, and that the Citation issued in Case Number 2010-[number redacted]-ROC- rhg, together with the Complaint upon which it is based, be dismissed. In the event of certification of the 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 that certification.

Done this day, February 22, 2012.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Clusiau v. Clusiau Enterprises, Inc., 225 Ariz. 247, 253 P 25-26, 236 P.3d 1194, 1200 (App. 2010). [2] See A.R.S. § 22-503(A). [3] See A.R.S. § 22-512(B). [4] See A.R.S. § 22-519. [5] See A.R.S. § 22-516(B). [6] See A.R.S. § 22-516(A). [7] See A.R.S. § 22-518.

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