ALJDEC decisions subject to certification as final

2010A-308473682-ROC · Registrar of Contractors · 2011-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Sean Williams. The Respondent appeared through its attorney, Lawrence Slater. 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 B-2 (No. 111181) License issued by the Registrar of Contractors. 2. This is a commercial matter where the parties entered into a written agreement for the Respondent to perform a commercial tenant improvement construction project at the Complainant’s truck driving school located at 842 S. 59th Ave., Phoenix, Arizona for the total sum of $270,530.11. 3. The Complainant was dissatisfied with the Respondent’s workmanship on the construction project and filed a formal Complaint against the Respondent with the Registrar of Contractors. 4. There was no onsite inspection because the construction items set forth in the Complaint has already been corrected and the Complainant was pursuing money damages. 5. At the hearing, the Complainant presented testimony and evidence in support of its claim for monetary damages from the Respondent in the sum of $700.00 for the electrical hook up for the stove in the commercial building, the sum of $480.00 for the construction of an ADA ramp for the commercial building, and the sum of $7,000.00 for the cost of installing a cricket on the roof of the joint between two of the commercial buildings. 6. There was no dispute that the Complainant utilized a licensed architect that had been recommended by the Respondent. 7. Credible testimony and evidence established that the Complainant then entered into an agreement with the licensed architect, who then prepared the plans and specifications for the construction project. 8. There was no credible evidence that the Respondent had anything to do with the creation of the plans and specifications that were then created by the licensed architect. 9. Credible testimony and evidenced established that electrical plans and specifications for the construction project were prepared by the architect who was working directly for the Complainant. 10. There was no dispute that the Respondent did not provide an electric connection for an electric stove that the Complainant wanted to install in the commercial property. 11. There was no dispute that applicable plans and specifications for the construction project did not require the installation of an electrical outlet for an electric stove. 12. There was no dispute that the Respondent did not construct an ADA Ramp for the Complainant’s commercial building. 13. There was no dispute that the local building authority required the construction of an approved ADA Ramp for the commercial building before the construction project could be approved by the local building authority. 14. Credible testimony and evidence established that the construction of an ADA Ramp was not set forth in the plans and specifications that were furnished to the Respondent by the Complainant for the construction project. 15. There was no dispute that the parties entered into a signed Change Order (Exhibit No. C-8) for the construction of the ADA Ramp, the installation of an electrical line for the stove, and the installation of a glass storefront door. 16. There was no dispute that the Respondent’s workmanship involved in the construction of the ADA Ramp and the installation of the electrical line for the stove was within applicable workmanship and industry standards. 17. Credible testimony and evidence established that as a part of the construction project, the Respondent agreed to have a licensed roofing subcontractor apply 1 ½ inches of roof coating on the Complainant’s existing buildings. 18. Credible testimony and evidence established that the Respondent’s roofing subcontractor applied the agreed upon roof coating to the Complainant’s existing buildings in a professional and workmanlike manner. 19. Credible testimony and evidence established that the Complainant then experienced water leaking at the transition area between two of the existing buildings that had been joined together. 20. The credible testimony and evidence of record is insufficient and fails to support a finding that there were any water leaks in areas on the roof where the Respondent had caused the new roof coating to be applied. 21. Credible testimony and evidence established that the Complainant, the Respondent, and the roofing subcontractor then conducted an onsite inspection of the roof at the transition area between the two buildings. 22. Credible testimony and evidence established that the Complainant entered into a construction agreement with the roofing subcontractor for the construction and installation of a roofing cricket near the transition area to divert water away from the transition area and to seal the roof to the wall transition 23. Credible testimony and evidence established that the Respondent declined to be involved in the agreed upon fix for the problem area at the transition between the two buildings unless the there were plans prepared and stamped by the architect for the construction project. 24. The credible testimony and evidence of record is insufficient and fails to support a finding that the installation of the new roof coating failed to comply with applicable workmanship and industry standards. 25. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 26. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its construction work in a professional and workmanlike manner. 27. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to complete a construction project or operation for the price stated in the contract or any modification of the contract. 28. There was no credible evidence to support a finding that the Respondent had failed to pay monies in excess of seven hundred fifty dollars when due for materials or services. 29. The Complainant may pursue its claim for monetary damages 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 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 its burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the 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, March 9, 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