ALJDEC decisions subject to certification as final

2010A-308475400-ROC · Registrar of Contractors · 2011-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, David Everson. 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 (No. 149764) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent. 3. Credible testimony and evidence established that the Complainant took occupancy of her residence on November 29, 2005, and filed her first complaint against the Respondent on November 9, 2007. 4. As a result of the Complaint an administrative hearing was held and on October 12, 2007, the Registrar issued an Order (Docket No. 06F-G1425- ROC) requiring the Respondent to correct designated construction deficiencies in the Complainant’s residence. 5. The parties were in sharp dispute as to whether the Respondent had fully complied with the terms Registrar’s Order of October 12, 2007, and on June 18, 2009, a Compliance Hearing was held. 6. The Order on Compliance Hearing provided that the Respondent’s Class B License was to be suspended until the Registrar of Contractors received written proof that the Respondent had accomplished appropriate and effective remedial work on the ceiling cracks in the Complainant’s garage. 7. Credible testimony and evidence established that the Respondent satisfactorily completed the designated repairs on the ceiling cracks in the Complainant’s garage on August 21, 2009, and that the first complaint was then closed by the Registrar of Contractors. 8. On August 16, 2010, the Complainant filed the complaint at issue regarding the corrective work on the ceiling cracks in her garage. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection. 10. The assigned Agency Inspector then moved to close the complaint on the following basis: The Complainants [sic] pointed out to the inspector (2) hairline cracks approximately 12” long running north/south on each side of the garage opener. Per both parties this area was worked on by the Respondent back on 8/20/09-8/21/09. Per both parties the issue back in 2009 was wavy or rippled drywall/texture on the garage ceiling which was repaired. Per the Complainants [sic] these (2) drywall cracks are a result of those repairs in 2009. This Inspector is not able to determine if these cracks are a direct result of the repairs in 2009. Cracks are hairline in nature, one of which to the east of the garage opener was barely visible even with aid of a flashlight. It was difficult for the Inspector to determine where the cracks started and stopped. No action is required by the contractor. 11. The Complainant disagreed with the assigned Agency Inspector’s determination and requested an administrative hearing. 12. The Complainant testified that the hairline cracking in her garage ceiling was unacceptable and should be corrected. 13. The Respondent testified that the problems with the garage ceiling had been fully corrected to the Complainant’s satisfaction nearly a year before the complaint at issue was filed. 14. The assigned Agency Inspector testified that he performed a prehearing inspection on April 19, 2011, and again determined that no action was required by the Respondent in this matter. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the hairline cracking in the Complainant’s garage ceiling fails to comply with applicable workmanship and industry standards. 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 credible testimony and evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of 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 20, 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