ALJDEC decisions subject to certification as final

2010A-308475062-ROC · Registrar of Contractors · 2011-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Ian Meuschke. 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 K-5 (No. 158170) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant entered into a written agreement with the Respondent for the purchase and installation of an awning on his residence. 3. The Complainant was dissatisfied with the awning that the Respondent installed on his residence and demanded that the Respondent remove the installed awning and replace the new awning with a higher priced type of awning for the same price as the installed awning. 4. When the Respondent failed to comply with the Complainant’s demand, the Complainant 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. 6. The assigned Agency Inspector was unable to determine the extent of the Respondent’s responsibility and moved to close the complaint. 7. The Complainant disagreed with the assigned Inspector’s decision to close the complaint and requested an administrative hearing. 8. The Complainant asserts that the he orally ordered a type G250 (partially cassetted) retractable awning and that the Respondent installed a type 8700 (non-cassetted) retractable awning on his residence. 9. The Complainant asserts that he is the victim of a bait and switch type of operation by the Respondent. 10. Credible testimony and evidence established that the parties’ written construction agreement requires the Respondent to provide and install a type 8700 non-cassetted retractable awning on the Complainant’s residence. 11. Credible testimony and evidence established that the Respondent installed the 8700 retractable awning on the Complainant’s residence in a professional and workmanlike manner. 12. There was no dispute that the Respondent invoiced the Complainant for the price of the installed type 8700 awning instead of the higher priced G250 awning. 13. Credible testimony and evidence established that the type of awning to be installed on the Complainant’s residence is shown next to the price of the new awning in the parties’ written contract. 14. Credible testimony and evidence established that the Complainant signed the written contract. 15. Credible testimony and evidence established that the Complainant received the type of awning specified in the parties’ written contract. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent switched the type of awning to be installed on the Complainant’s residence by installing a different quality of awning on the Complainant’s residence. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent misrepresented the type of awning to be installed in the Complainant’s residence. 18. The credible testimony and evidence of record is insufficient and fails to support a finding of a fraudulent act by the Respondent in this matter. 19. The credible testimony and evidence of record is insufficient and fails to support a finding of false, misleading or deceptive advertising by the Respondent. 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 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, February 14, 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