ALJDEC decisions subject to certification as final

2010A-308473968-ROC · Registrar of Contractors · 2011-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Garland Shaw II. 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 (149095) License issued by the Registrar of Contractors. 2. The Respondent constructed a new house next to the Complainant’s residence. 3. The Complainant felt that the Respondent had improperly directed water drainage from the new house onto the Complainant’s property causing unacceptable flooding conditions on the Complainant’s property. 4. The Complainant notified the Respondent of the drainage problem and demanded that the Respondent take appropriate corrective action. 5. When the Respondent failed to comply with the Complainant’s demand for corrective action, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and informed the parties that they could resolve the matter between themselves or he would make a determination. 7. Credible testimony and evidence established that the parties then entered into negotiations which resulted in a written Settlement Agreement. 8. There was no dispute that the Respondent agreed to perform designated corrective action at the Complainant’s residence to alleviate the flooding conditions in accordance with the written Settlement Agreement. 9. The Agency Inspector then moved to close the complaint based upon the parties’ Settlement Agreement. 10. The Complainant was dissatisfied with the results of the corrective action that was performed by the Respondent and requested that his Complaint be reopened. 11. The Complaint was then reopened, and the assigned Agency Inspector performed a second onsite inspection at the Complainant’s residence. 12. The assigned Agency Inspector found that no further corrective action by the Respondent was required and moved to close the complaint without the issuance of a Corrective Work Order. 13. The Complainant disagreed with the Inspector’s determination and requested an administrative hearing. 14. Credible testimony and evidence established that the Respondent fully complied with the terms of the parties’ written Settlement Agreement. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the corrective work performed by the Respondent fails to comply with applicable workmanship and industry standards. 16. There was no credible testimony that the Respondent departed from or disregarded plans or specifications or any building codes. 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 sections of the state’s contracting laws. Therefore, the credible evidence of record failed to sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building code) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule 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, April 12, 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