ALJDEC decisions subject to certification as final

2010A-308476816-ROC · Registrar of Contractors · 2011-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2011, at 1:00 p.m. APPEARANCES: The Complainant (Jesus Olivarria/Quartz Concepts) appeared on his own behalf. The Respondent appeared through its authorized representative, Tim Thomas. 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 K-5 (No. 256728) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant is employed as a shop manager by Quartz Concepts. 3. There was no dispute that on or about August 4, 2010, that a sky light was broken during a storm on the commercial building located at 4011 E. Columbia, Tucson, Arizona where Quartz Concepts conducts its business including the fabrication of countertops, fireplace mantels, and various other quartz and granite items. 4. Credible testimony and evidence established that Quartz Concepts contacted the owner of the building about the damaged skylight and the owner of the building then contacted the Respondent and requested that the Respondent properly correct the damaged skylight. 5. Credible testimony and evidence established that the Respondent then conducted a visual examination of the shattered skylight and covered the broken skylight. 6. Credible testimony and evidence established that pieces of the broken skylight may have fallen into the interior of the building when the Respondent covered the broken skylight. 7. The Complainant, Jesus Olivarria, is the owner of a custom car project based on a 1983 Cadillac with an expensive custom paint application which was stored in the building at 4011 E. Columbia, just below the broken skylight. 8. Credible testimony and evidence established that the Complainant’s car project is incomplete and requires a fork lift to move it. 9. After the Respondent completed its construction work on the damaged skylight the Complainant observed several dents on the custom car project and notified the Respondent of the damage to the custom car project which the Complainant alleged was caused by the Respondent. 10. The Respondent then notified its insurance company which conducted an onsite inspection of the premises and declined insurance coverage for the Complainant’s claim for damages. 11. The Complainant then filed a formal Complaint against the Respondent with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector reviewed the matter and the Complainant requested an administrative hearing. 13. The Complainant asserts that the Respondent damaged the Complainant’s car project while the Respondent was inspecting the broken skylight above the unfinished car project and that the cost of repairing the paint application on the custom car project is between $8,093.60 and $10,854.00. 14. The Complainant asserts that the colors on the custom car project are no longer available and that essentially all of the paint on the body of the 1983 Cadillac will have to be removed, the dents on the car repaired, and then the entire body of the 1983 Cadillac will have to be repainted with a new custom paint application. 15. The Respondent asserts that the damages to the car project could have been caused by the initial shattering of the skylight or from bits of quartz from the fabrication process of quartz products by Quartz Concepts and denied any liability for damages to the body of the Complainant’s car project based on the 1983 Cadillac. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent caused the damage to the Complainant’s car project based on the 1983 Cadillac. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its construction work on the damaged skylight in a professional and workmanlike manner. 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) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner), 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, August 8, 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