ALJDEC decisions subject to certification as final

2010A-308476522-ROC · Registrar of Contractors · 2011-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 18, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, David Lorenson. 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-5 (No. 208790) License issued by the Registrar of Contractors. 2. There was no dispute established that on August 17, 2010, the Respondent replaced a broken torsion spring on the Complainant’s garage door and performed a twelve (12) point inspection of the garage door and issued a ninety (90) day warranty for its work and inspection. 3. Undisputed credible testimony and evidence established that the Respondent’s garage door inspection included door balance, springs, spring anchor, bearings, shaft drums, cables, rollers, hinges struts, tracks/brackets, operator functions and safety functions. 4. Credible testimony and evidence established that forty eight (48) days later the cable springs on the Complainant’s garage door opener came off the drum and became entangled in the shaft which caused the garage door strut to break away from the door which then damaged the top two sections of the Complainant’s garage door. 5. The Complainant was extremely dissatisfied with the Respondent’s workmanship and notified the Respondent of the damages to his garage door. 6. Credible testimony and evidence established that on October 6, 2010, one of the Respondent’s employees conducted an onsite inspection of the damaged door. 7. Credible testimony and evidence established that the Respondent then offered to replace the damage strut at the Complainant’s expense and that the Respondent denied liability for the damaged garage doors. 8. Credible testimony and evidence established that the Complainant was unable to properly operate his garage door with the damaged garage door strut. 9. When the Respondent declined to correct the damaged strut unless the Complainant paid the Respondent for the cost of repair, the Complainant contacted an alternative licensed contractor and caused the damaged strut to be corrected. 10. Credible testimony and evidence established that the Complainant paid the alternative licensed contractor the sum of $77.73 to replace the damaged garage door strut. 11. The Complainant then demanded that the Respondent reimburse the Complainant for his costs of replacing the damaged garage door strut and that the Respondent replace the damaged garage door and return most of the money that the Complainant had paid the Respondent. 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. There was no onsite inspection because the garage door had already been corrected by an alternative licensed contractor. 14. Credible testimony and evidence established that the Complainant’s actions, in causing a properly licensed contractor to replace the damaged garage door strut so that his garage door would be operational again, were reasonable and justified under the circumstances. 15. Credible testimony and evidence established that the Complainant’s cost of $77.73 to replace the damaged garage door strut was reasonable and justified. 16. Credible testimony and evidence established that the Respondent is fully responsible for the replacement of the damaged garage door strut and the proper correction of the two damaged garage door panels. 17. Credible testimony and evidence established that the Complainant and the Respondent’s representative have developed an extraordinarily contentious personal relationship in this matter and that any further direct contact between the two individuals would present an unacceptably high likelihood of police involvement. 18. Although the Registrar of Contractors normally allows a contractor an additional opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not have any further contact with this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor of the Respondent’s choice to properly correct the two damaged panels in the Complainant’s garage door.

19. Notice is taken of the Respondent’s good 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 credible evidence of record supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 5. A.R.S. §32-1156.01 provides that an administrative law judge may recommend that a licensee provide restitution to any person is injured or whose property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Respondent’s choice to fully correct the two damaged garage door panels in the Complainant’s garage door and that the Respondent has paid the sum of $77.73 to the Complainant as restitution for the Complainant’s cost of replacing the damaged garage door strut. It is further recommended that if the Respondent fully accomplishes the above described actions, 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 27, 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