ALJDEC decisions subject to certification as final

2010A-308474974-ROC · Registrar of Contractors · 2011-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Kevin Broheman. 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 C-65 (No. 162691) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant lives next door to a residence located at 4821 E. Calle Tuberia, Phoenix Arizona. 3. Credible testimony and evidence established that the Respondent performed construction work as a window and door subcontractor for a remodeling project taking place at 4821 E. Calle Tuberia, Phoenix, Arizona. 4. On August 7, 2010, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent was performing extensive remodeling work, including the construction of a block wall, electrical work, and HVAC work, on the residence located at 4821 E. Calle Tuberia, Phoenix, Arizona. 5. The parties were unable to resolve their dispute and on August 24, 2010, the Complainant filed a request that a Citation be issued against the Respondent’s License. 6. On October 6, 2010, the Registrar of Contractors issued a Citation and Complaint charging the Respondent with possible violations of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license of the licensee). 7. The Complainant testified that she was unhappy with the workmanship on the block wall constructed on the property at issue and that she did not believe that the construction of the wall complied with applicable building code requirements. 8. The Complainant also testified that she allegedly had personal conversations with several different individuals all of whom allegedly informed her that the Respondent was acting as a general contractor for the construction work being performed at 4821 E. Calle Tuberia, Phoenix, Arizona. 9. The Respondent’s qualifying party, William Devito, testified that the Respondent only performed window and door work at the residence at issue and that all construction work performed by the Respondent on the doors and windows complied with all applicable code requirements. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent had anything to do with the construction of the block wall between the Complainant’s property and the residence located at 4821 E. Calle Tuberia, Phoenix, Arizona. 11. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent performed any electrical or HVAC work at the residence located at 4821 E. Calle Tuberia, Phoenix, Arizona. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent contracted beyond the scope of the Respondent’s License. 13. 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 in the door and window work that the Respondent performed at the residence located at 4821 E. Calle Tuberia, Phoenix, Arizona. 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 her 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) (2) (Departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license of the licensee), as charged in the Citation and Complaint. 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, June 15, 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