ALJDEC decisions subject to certification as final

2010A-308477560-ROC · Registrar of Contractors · 2011-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 15, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Pam Whitecotton. 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-37 (No. 198096) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed plumbing work at the Complainant’s residence. 3. There was no dispute that the plumbing work was completed by the Respondent and that the Complainant fully paid the Respondent for its plumbing work. 4. There was no dispute that the completed plumbing work was inspected and approved by the local building authority. 5. The Complainant was dissatisfied with the Respondent’s professionalism and behavior at the construction site and filed a formal complaint against the Respondent with the Registrar of Contractors. 6. On January 25, 2011, the Complainant filed a request for an administrative hearing of the matter at issue. 7. On February 17, 2011, the Registrar of Contractors issued a Citation and Complaint charging the Respondent with a possible violation of A.R.S. § 32-1154 (A) (7) (the doing of a fraudulent act). 8. Credible testimony and evidence established that although the Complainant’s concerns, frustrations, and aggravation regarding the problems he experienced with the plumbing work that the Respondent performed at his residence are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (7) (the doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured). 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) (7) (The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured) 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, June 15, 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