ALJDEC decisions subject to certification as final

2010A-308476463-ROC · Registrar of Contractors · 2011-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 1, 2010, at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. 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 C-37 R (No. 244609) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant purchased a salt-less water treatment system from the Respondent. 3. Credible testimony and evidence established that the Complainant was dissatisfied with the operation of the new water treatment system and complained to the Respondent. 4. Credible testimony and evidence established that the Respondent returned to the Complainant’s residence on several different occasions in an attempt to satisfy the Complainant. 5. Credible testimony and evidence established that when the Complainant experienced a low pressure problem in a shower in his residence, the Complainant retained a plumbing contractor to properly correct water pressure problem with the shower. 6. The plumbing contractor examined the Complainant’s plumbing and resolved the low water pressure problem with the shower in the Complainant’s residence. 7. Credible testimony and evidence established that the plumbing contractor charged the Complainant $281.86 for its work. 8. Credible testimony and evidence established that the plumbing contractor informed the Complainant that the plumbing contractor felt the pressure problem with the shower had been the result of the improper installation of the salt-less water treatment system. 9. Credible testimony and evidence established that the Complainant then contacted the Respondent and expressed his dissatisfaction with the new water treatment system and requested that the Respondent remove the new water treatment system and replace it with a salt water treatment system. 10. Credible testimony and evidence established that the Respondent then removed the salt-less water treatment system and replaced it with a new salt water treatment system. 11. The Complainant was dissatisfied with the new salt water treatment system and demanded that the Respondent remove the new salt water treatment system and promptly return all of the Complainant’s money that the Complainant had paid for the salt-less water treatment system and reimburse the Complainant for the money that the Complainant had paid the licensed plumber to resolve the water pressure problem in the Complainant’s residence. 12. When the Respondent failed to comply with the Complainant’s demands, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 13. Pursuant to the filing of the formal complaint, an assigned Agency Inspector reviewed the matter. No Corrective Work Order was issued in this matter. 14. On October 27, 2010, the Complainant filed a written request for an administrative hearing for this matter. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the installation of the salt-less water treatment system in the Complainant’s residence 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 low water pressure problem the Complainant experienced in a shower in his residence was caused by the installation of the salt-less water treatment system. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the installation of the currently installed salt water treatment system fails to comply with applicable workmanship and industry standards. 18. The credible testimony and evidence of record is insufficient and fails to support a finding that the current salt water treatment system in the Complainant’s residence is a used water treatment system. 19. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 20. Credible testimony and evidence established that the Respondent failed to properly display its license number on its letterhead utilized for correspondence with the Registrar of Contractors in this matter in violation of the charged provisions of A.R.S. § 32-1124 (B) (Display of license). 21. Notice is taken of the Respondent’s excellent prior License record with the Registrar of Contractors. 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 charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes) and 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). 5. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (Display of license). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) (Display of license). It is further recommended that if the Respondent properly accomplishes the above described action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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 12, 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