ALJDEC decisions subject to certification as final

2010A-308475917-ROC · Registrar of Contractors · 2011-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 2, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Robert Coltin. 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 (092319) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a new residence that had been constructed by the Respondent. 3. The Complainant was dissatisfied with the appearance of the carpeting installation in his new residence and complained to the Respondent. 4. In response to the Complainant’s dissatisfaction the Respondent contacted the manufacturer of the carpeting and requested that an onsite inspection be conducted by carpeting expert. 5. The manufacturer of the carpeting then caused the Complainant’s carpeting to be inspected by a third party expert. 6. The third party expert conducted an onsite inspection of the Complainant’s carpeting and issued a written report wherein the third party expert identified the problems with the Complainant’s carpeting as being caused by local conditions and found that there was no indications of poor workmanship in the installation of the carpeting or a defect in the carpeting itself. 7. The Complainant disagreed with the findings of the third party expert and filed a formal complaint against the Respondent with the Registrar of Contractors. 8. 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 carpeting. 9. The Corrective Work Order provides, in pertinent part, as follows: Contractor to properly reattach the rolled carpet edge where it abuts the kitchen flooring [sic].

There was insufficient evidence to confirm that the carpeting has manufacturing defects and no further correction is required.

10. Credible testimony and evidence established that the Respondent’s carpeting subcontractor then corrected the carpeting by installing gold colored metal finishing strips along all edges of the carpeting where the carpeting transitions to dissimilar floor surfaces in the Complainant’s residence. 11. Credible testimony and evidence established that the Complainant accepted the installation of the metal finishing strips as an appropriate repair to his carpeting and that the Complainant signed a written acknowledgment wherein he accepted the use of metal finishing strips as an acceptable method of correcting his carpeting. 12. Credible testimony and evidence established that the Complainant then became dissatisfied with the appearance of the metal finishing strips that were installed along the edges of the carpeting in his residence. 13. The Complainant then chose to remove and replace the carpeting in his residence. 14. The Complainant now seeks restitution for his monetary costs of removing and replacing the carpeting in his residence. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant’s carpeting installation failed to comply with applicable workmanship and industry standards. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the carpeting in the Complainant’s residence required removal and replacement. 17. The Complainant’s actions, in causing the carpeting in his residence to be totally removed and replaced after accepting the installation of the metal finishing strips as being an appropriate correction to the alleged problems with his carpeting, are found to be unreasonable. 18. Credible testimony and evidence established that the Respondent fully complied with the terms of the 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, May 17, 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