ALJDEC decisions subject to certification as final

2010A-308477278-ROC · Registrar of Contractors · 2011-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Thomas Melton. The Respondent appeared through its authorized representative, Jonathon Deaton. 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. At the onset of the scheduled hearing, Thomas Melton was added as a named Complainant without objection from the Respondent. Thomas Melton is the owner of the residence at issue. Matthew Bennett is Thomas Melton’s employee; Kathy Stolze is Thomas’ Melton’s mother-in-law. 2. There was no dispute that Matthew Bennett and Kathy Stolze do not have an ownership interest in the residence at issue. 3. Credible testimony and evidence established that Kathy Stolze lives in the residence at issue. 4. The Respondent is the holder of a Class K-39 (No.255268) License issued by the Registrar of Contractors. 5. This is a residential matter where the Respondent contacted Kathy Stolze and offered to perform service work on the HVAC system for the residence at issue for a reduced price. 6. There was no dispute that Kathy Stolze accepted the Respondent’s offer and that the Respondent’s employee then performed service work inside the residence at issue. 7. Credible testimony and evidence established that the Respondent’s employee then conducted an inspection of the compressor unit located on the exterior of the residence at issue. 8. Credible testimony and evidence established that the Respondent’s employee asked Kathy Stolze to accompany him as he performed the inspection of the compressor unit. 9. There was no dispute that Kathy Stolze declined to accompany the Respondent’s employee on the basis that she was cleaning up a mess allegedly left by the Respondent’s employee in the inside of the residence at issue. 10. Credible testimony and evidence established that the Respondent’s employee found that there had been a fire in the compressor unit and that the fire damaged compressor unit required proper replacement. 11. Credible testimony and evidence established that the Respondent’s employee informed Kathy Stolze that he had observed fire damage in the compressor unit and then provided her with an estimate for the cost of replacing the entire HVAC system for the residence. 12. Kathy Stolze then contacted Thomas Melton and informed him that the compressor unit was no longer operable and that the compressor unit had been working properly before the Respondent performed its inspection of the compressor unit. 13. Thomas Melton then retained an alternative licensed contractor to replace the fire damaged compressor unit and demanded that the Respondent reimburse the Complainants for the cost of the replacement compressor unit. 14. When the Respondent failed to comply with the Complainants’ demand, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 15. When the parties were unable to resolve their differences the Complainants requested an administrative hearing. 16. Kathy Stolze testified that she was still using the air conditioning in the residence in November and that the original compressor was working properly before the Respondent’s employee inspected the unit. 17. The Complainants assert that the Respondent’s employee damaged the original compressor unit and that the Respondent should be responsible for the replacement of the compressor unit. 18. The Respondent’s employee denied that he damaged the Complainants’ compressor unit. 19. The Respondent asserts that the fire in the compressor unit occurred before the Respondent’s employee conducted his inspection and that the Respondent’s employee had nothing to do with the fire that occurred in the compressor unit. 20. The credible testimony and evidence of record is insufficient and fails to support a finding as to when the fire in the original compressor unit occurred. 21. There was no credible evidence that the Respondent’s employee performed any action that could have caused the fire that damaged the original compressor unit. 22. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent damaged the original compressor unit. 23. There was no credible evidence of a fraudulent act by the Respondent. 24. There was no credible evidence that the Respondent abandoned a contract or refused to perform after submitting a bid for work. CONCLUSIONS OF LAW 1. The Complainants have 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 Complainants failed to sustain their burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the 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. 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 3, 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