ALJDEC decisions subject to certification as final

2010A-308473897-ROC · Registrar of Contractors · 2010-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Colleen Gallagher. The Respondent appeared through its attorney, Denise Trg. 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-1 (No. 169176) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed fire restoration work on the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to their satisfaction despite their repeated demands that it do so. 4. When the Respondent failed to comply with the Complainant’s demands the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on July 12, 2010, issued a sixteen (16) item written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The assigned Agency Inspector testified that he conducted a prehearing onsite inspection and that in his opinion the Respondent had fully complied with the terms of the Corrective Work Order. 7. The parties were in sharp dispute as to whether the Respondent had fully complied with the terms of the Corrective Work Order. 8. The following three (3) items of the Corrective Work Order remained in dispute: (1) The painting in the master bedroom. (2) The stain on the baseboards in the master bedroom. (3) The condition of the drywall in the bathroom. 9. Credible testimony and evidence established that the Registrar of Contractors does not apply perfection standards when judging workmanship. The standard, as applied by the Registrar, is whether the workmanship involved is within applicable industry standards for good and proper workmanship. 10. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the reconstruction of their home are understandable, construction work, such as that at issue herein, is not a perfect science, and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project in order to bring the final work product up to appropriate industry standards. 11. Credible testimony and evidence, presented at hearing, established that the painting in the master bedroom is within applicable workmanship and industry standards. No further corrective action by the Respondent was shown to be necessary. 12. There was no dispute that the Respondent was responsible for preparing the drywall in the bathroom for the installation of wallpaper and that the Complainants would then be responsible for the installation of wallpaper in the bathroom. 13. Credible testimony and evidence established that the drywall was properly prepared for the installation of wall paper. No corrective action by the Respondent was shown to be necessary. 14. There was no dispute that the Respondent did not correct the staining on the baseboards in the master bedroom. 15. Credible testimony and evidence established that the Respondent offered to correct the stain on the baseboards in the master bedroom and that the Complainants denied access to the Respondent on the basis that they did not want to deal with the mess that would be involved in correcting the stain on the baseboards. 16. Credible testimony and evidence supports a finding that the Complainants’ actions in refusing to allow the Respondent access to their bedroom for the Respondent to perform corrective action on the baseboards in the bedroom was not reasonable and constituted a denial of access. 17. The unreasonable denial of access is found to constitute the equivalence of full compliance for this item of the Corrective Work Order. 18. Credible testimony and evidence established that the Complainants indicated that they wanted the Respondent to perform additional construction work in lieu of the corrective work on the baseboards in the master bedroom. 19. Credible testimony and evidence established that the Respondent then performed additional construction work for the Complainants without charge in lieu of performing corrective work on the baseboards in the Complainants’ master bedroom. 20. In view of the unreasonable denial of access by the Complainants and the performance of additional construction work by the Respondent in lieu of the corrective work on the baseboards, no corrective action by the Respondent is found to be necessary for the staining on the baseboards in the master bedroom. 21. Credible testimony and evidence established that the Respondent has fully complied with the terms of the Corrective Work Order issued in this matter. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent is in violation of 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 Complainants failed to sustain their burden of proof to establish that the Respondent is in violation of the applicable charged sections of the state’s contracting laws. 5. Credible testimony and evidence supported findings which establish that the Respondent has fully complied with the terms of the Corrective Work Order issued in this matter. Therefore, the credible evidence of record does 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 closed. 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, December 28, 2010.

/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