ALJDEC decisions subject to certification as final

2010A-308475203-ROC · Registrar of Contractors · 2011-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 11, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, H. Paul Honsinger. 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-37 (159254) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that parties entered into an oral barter agreement pursuant to which the Complainant gave the Respondent approximately $2,000.00 worth of “sprint car” automobile parts in exchange for an equivalent value of plumbing work performed by the Respondent. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to completely remodel his bathroom despite the Complainant’s demand that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands, 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 on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Undisputed credible testimony and evidence established that the Respondent fully complied with the terms of the Corrective Work Order. 7. The only item remaining in dispute at the hearing was the Complainant’s demand that the Respondent install a new floor covering in his bathroom. 8. Credible testimony and evidence established that the installation of new floor covering in the Complainant’s bathroom was not part of the parties’ oral barter agreement. 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 did not sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. §32-1154 (A). 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, May 11, 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