ALJDEC decisions subject to certification as final

2010A-308475619-ROC · Registrar of Contractors · 2011-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Joseph Holland. 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 KA (No. 231663) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Respondent performed agreed upon engineering work for the Complainant. 3. On September 2, 2010, the Complainant filed a complaint against the Respondent with the Registrar of Contractors alleging that the Respondent had (1) damaged property on lot #1, (2) left debris on lot #1, (3) abandoned an agreed upon water system, and (4) performed unauthorized work on an easement. . 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection an issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the property at issue. 5. There was no dispute that the Respondent fully complied with the terms of the Corrective Work Order. 6. The Complainant continued with the complaint at issue based upon the Complainant’s allegation that the Respondent had improperly removed dirt from one of the four lots. 7. Credible testimony and evidence established that the Complainant does not own the lot where the dirt was allegedly removed from. 8. There was no credible evidence that any dirt was improperly removed from the construction project at issue. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent improperly removed any dirt from the construction project at issue. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform work at the construction project at issue. 11. Credible testimony and evidence established that the Respondent properly resolved any possible issues regarding workmanship at the construction site by fully complying with the terms of the written Corrective Work Order issued in this matter. 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 provisions of A.R.S. § 32-1154 (A), 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 16, 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