ALJDEC decisions subject to certification as final

2011A-1247-ROC · Registrar of Contractors · 2011-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Dan Wood. 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 C-61 (No. 199791) License issued by the Registrar of Contractors. 2. There was no dispute that the Respondent installed ten (10) new triple paned energy efficient windows in the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship in the installation of the new windows and with the alleged poor energy efficiency of the new windows. 4. When the Respondent failed to comply with the Complainant’s repeated requests to properly resolve the alleged problems with the new windows to the Complainant’s satisfaction the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 6. As a result of the onsite inspection the Registrar of Contractors decided not to issue a Citation based upon the following findings from the onsite inspection: The installed windows are as specified in the contract documents and are performing as designed. The respondent is not responsible for termite infestation at the home or for the cost of termite treatment. Stucco issues were corrected prior to the jobsite inspection. There was no evidence to indicate that the windows were not properly installed. Caulking is a maintenance issue which was not listed in the complaint. The contractor agreed to re-caulk as needed, and should do so. 7. The Complainant disagreed with the decision of the Registrar of Contractors not to issue a Citation and requested an administrative hearing. 8. Credible testimony and evidence presented at hearing established that the new windows installed in the Complainant’s residence are the same windows specified in the parties’ written construction agreement. 9. Credible testimony and evidence established that the new windows in the Complainant’s residence were installed in a professional and workmanlike manner. 10. There was no credible evidence of any departure from or disregard of plans or specifications or any building codes. 11. There was no credible evidence of any false, misleading or deceptive advertising by the Respondent. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the termite infestation at the Complainant’s residence. 13. There was no dispute that the stucco problems around the new windows had been resolved to the Complainant’s satisfaction. 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 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 charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or nay building codes), A.R.S. § 32- 1154 (A) (16) (False, misleading or deceptive advertising), and 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 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 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