ALJDEC decisions subject to certification as final

2010A-308477564-ROC · Registrar of Contractors · 2011-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 1, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Leonard L. Snell. 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-21 (No. 201326) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent was retained to perform landscaping work on the Complainant’s yard, including the proper re-seeding of several bare spots in the lawn and ensuring that the Complainant’s lawn was properly watered while the Complainant was out of town for a period of approximately two months, for the total sum of $165.00. 3. When the Complainant returned from her out of town trip, she immediately noticed that the water bills for the two months that she was gone totaled $391.91, that the Respondent’s reseeding efforts had made the appearance of her lawn worse rather than better, and that there were numerous weeds throughout the Complainant’s yard. 4. There was no dispute that the Complainant’s normal water bill was approximately $30.00 per month. 5. The Complainant asserts that the appearance of the lawn was so poor that she retained an alternative licensed contractor to remove the grass and plants in her back yard, install weed preventing plastic, and spread rock. In addition, the alternative contractor trimmed the bushes, spread rock, and removed weeds in the front yard of her residence. The total sum for this work was $2,900.00. 6. The Complainant asserts that the side yards of her residence will also require extensive corrective action and submitted a bid from the same alternative licensed contractor to perform the desired corrective work to the Complainant’s side yards for the sum of $1,500.00. 7. The Complainant then contacted the Respondent and demanded payment for the claimed damages yard in the total sum of $4,791.91. 8. When the Respondent failed to comply with the Complainant’s demand for payment for her damages, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. An assigned Agency Inspector then reviewed the matter and the Complainant requested an administrative hearing. 10. The Complainant asserts that the Respondent failed to perform the agreed upon lawn care and landscaping work in a professional and workmanlike manner and that she now seeks full restitution for her claimed damages in the total sum of $4,791.91. 11. The Respondent asserts that it performed its work in a professional and workmanlike manner and that the problems with the Complainant’s yard were allegedly caused by the repeated vandalism of the Complainant’s irrigation system. 12. The Complainant’s claim for restitution in the total sum of $4,791.91 for the Complainant’s costs for removing the grass and plants in her rear and side yards and replacing them with weed preventing plastic and rock, and for her costs for the two water bills at issue, is found to constitute a claim for money damages. 13. Credible testimony and evidence established that the parties have become embroiled in a sharply contested monetary dispute regarding the Complainant’s claim for money damages in this matter. 14. The Respondent’s position in this dispute over the Complainant’s claim for money damages is found under all of the circumstances to have been asserted in good faith. 15. The parties may resolve their monetary dispute regarding the Complainant’s claim for money damages in a civil court of competent jurisdiction. 16. The credible testimony and evidence of record is inadequate and fails to support a finding that the Respondent’s workmanship on the Complainant’s yard failed to comply with applicable workmanship and industry standards. CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate and award money damages. 2. 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). 3. 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). 4. 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). 5. The Complainant failed to sustain her 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).

RECOMMENDED ORDER In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, 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 10, 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