ALJDEC decisions subject to certification as final

2010A-701104-ROC · Registrar of Contractors · 2010-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2010 a 1:00 p.m. APPEARANCES: The Complainants appeared through Milton Hawkins. The Respondent appeared through its authorized representative, Christopher Bedel. 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 KB-02 (No.216372) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed extensive remodeling work on two bathrooms in the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s alleged failure to obtain required permits and pass subsequent inspections for portions of the construction work and demanded that the Respondent obtain the required permits and properly pass any required inspections by the local building authority. 4. When the Respondent refused to comply with the Complainants’ demands, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. There was no dispute that no electrical permit was obtained for the electrical work performed on the Complainants’ residence and that consequently there was no inspection of the electrical work by the local building authority. 6. There was no dispute that the Respondent recommended the electrical contractor to the Complainants. 7. Credible testimony and evidence established that the Complainants then entered into a written construction agreement with the electrical contractor and that the electrical work on the bathroom remodeling project was performed by an electrical contractor which worked directly for the Complainants. 8. The Complainants’ written construction agreement (Exhibit No. R-2) with the electrical contractor provides, in relevant part, as follows; 7. Permit not included. 9. Credible testimony and evidence established that the construction agreement between the Complainants and the electrical contractor provides that the Complainants are responsible for obtaining the permit for the electrical work performed by the electrical subcontractor. 10. The undisputed fact that the Respondent recommended a licensed electrical contractor is insufficient and fails to support a finding that the Respondent is then responsible for the alleged errors or omissions of the licensed electrical contractor. 11. The credible evidence of record is insufficient and fails to support a finding that the Respondent had any responsibility for the obtaining of an electrical permit for the electrical work performed on the Complainants’ residence. 12. The credible evidence of record is insufficient and fails to support a finding that the Respondent had any responsibility for requesting an inspection by the local building authority for the electrical work performed by the licensed electrical contractor that was performing electrical work directly for the Complainants. 13. Credible testimony and evidence established that no permit was required for the tile, cabinetry, and similar finish work performed by the Respondent during the bathroom remodeling contract. 14. Credible testimony and evidence established that the Respondent’s replacement of a bathtub fixture and shower valve did not require a permit. 15. Credible testimony and evidence established that the local building authority has accepted the plumbing work performed by the Respondent in reconfiguring the drain piping to covert a shower into a bathtub in one of the bathrooms in the Complainants’ residence and that the local building authority will not require that a building permit be obtained for the completed plumbing work. No corrective action by the Respondent was shown to be necessary.

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 credible evidence of record was insufficient and failed to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes of the state or any political subdivision. 5. 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 credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDed order

In view of the foregoing, it is recommended that this matter shall 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, July 12, 2010.

/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