ALJDEC decisions subject to certification as final

2010A-308474934-ROC · Registrar of Contractors · 2011-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through his attorney, Stephen Green. The Respondent appeared through its authorized representative, Blaine Benson. 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-6 (No. 090802) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that on May 17, 2010, the Complainant retained the Respondent to service the Complainant’s swimming pool. 3. There was no dispute Respondent was unable to complete its servicing of the Complainants’ swimming pool on May 18, 2010. 4. The Respondent then allegedly returned to the Complainant’s residence on May 20, 2010, and performed additional service work on the Complainant’s swimming pool. 5. Credible testimony and evidence established that the Respondent failed to complete the agreed upon service work on the Complainant’s swimming pool on May 20, 2010. 6. The Respondent asserts that the Respondent’s employee was unable to complete the agreed upon service work because of difficulty with the Complainant’s Chihuahua dog. 7. On May 21, 2010, the Respondent called the Complainant’s wife and informed her that the Respondent needed authorization to replace the salt system for the Complainant’s swimming pool at an estimated cost of $158.00. 8. The Complainant then retained an alternative pool contractor to inspect and service the Complainant’s swimming pool. 9. Credible testimony and evidence established that the alternative swimming pool service company found several problems with the Complainant’s swimming pool equipment and replaced several inoperable pieces of pool equipment on the Complainant’s swimming pool. 10. Credible testimony and evidence established that the alternative swimming pool service company then informed the Complainant that the Respondent had performed its swimming pool maintenance work in a poor and substandard manner. 11. The Respondent then attempted to collect the money that the Respondent claimed as being due for the two service calls that the Respondent allegedly performed at the Complainant’s residence 12. The Complainant refused to pay the full amount of money claimed for the service work allegedly performed by the Respondent. 13. The Complainant asserts that the Respondent was never at his house on May 20, 2010, and that no service work was performed on May 20, 2010. 14. The parties then became embroiled in a money dispute regarding the Respondent’s claim for payment, and the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 15. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection of the Complainant’s swimming pool. 16. The assigned Agency Inspector issued a letter on September 10, 2010, informing the parties that a citation would not be issued against the contractor and that the complaint would be dismissed if the Complainant failed to file a request for further review within ten (10) days. 17. Credible testimony and evidence established that the Complainant then filed a request for further review within the time period allowed. 18. Credible testimony and evidence established that the problems with the Complainant’s swimming pool had been resolved by the alternative swimming pool service company prior to the on-site inspection. 19. There was no dispute that the Respondent had performed prior swimming pool service work on the Complainant’s swimming pool. 20. Credible testimony and evidence established that the Respondent performed service work on the Complainant’s swimming pool during the summer months prior to May 2010. 21. Credible testimony and evidence established that the Complainant was responsible for performing service work on the swimming pool during the winter months prior to May 2010. 22. The credible testimony and evidence of record is insufficient and fails to support a finding as to the date when the Respondent last performed service work on the Complainant’s swimming pool prior to May 18, 2010. 23. The credible testimony and evidence of record is insufficient and fails to support a finding as to whether the problems with the Complainant’s swimming pool equipment occurred when the Respondent was responsible for servicing the Complainant’s swimming pool or when the Complainant was responsible for servicing the Complainant’s swimming pool. 24. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent did not return to the Complainant’s residence and attempt to service the Complainant’s swimming pool on May 20, 2010. 25. The credible evidence of record adequately demonstrated a good faith monetary dispute between the parties regarding what, if any, amount of money is due and owing to the Respondent from the Complainant for the work that the Respondent allegedly performed on the Complainant’s swimming pool. 26. The parties’ monetary dispute can be resolved in a civil court of competent jurisdiction. 27. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act. 28. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its work in a professional and workmanlike manner. 29. Credible testimony and evidence established that the Respondent failed to comply with the provisions of A.R.S. § 32-1124 (B) (Display of license). 30. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. 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 charged provisions of A.R.S. § A.R.S. § 32- 1154 (A) (7) (Fraud) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R- 4-9-108 (Failure to perform work in a professional and workmanlike manner). 5. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (Display of license). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B). It is further recommended that if the Respondent properly provides acceptable written proof of full compliance with the provisions of A.R.S. § 32-1124 (B), on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall 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, March 24, 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