ALJDEC decisions subject to certification as final

2011A-1989-ROC · Registrar of Contractors · 2011-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. 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-21 (No. 188639) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed landscaping work at the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s refusal to correct his work to the Complainant’s satisfaction despite the Complainant’s demand that he do so. 4. When the Respondent failed to comply with the Complainant’s demand, the Complainant then 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 onsite inspection. 6. The assigned Agency Inspector’s Jobsite Inspection Notes provide as follows: Prior to the jobsite the complainant informed me that the only 2 complaints were: 1. Drip system is inadequate. 2. The contractor is very hostile towards him.

The complainant stated that he should have more drip emitters on all his plants and trees and that the respondent continues to argue with him. The respondent stated that he has returned on several occasions, the last time in October 2011, and keeps informing the complainant that he can always set the drip system to provide more water to all his plants and trees but that the complainant refuses. The complainant stated the respondent has returned several times but that the system is inadequate. The respondent informed us that he installed the system for type of watering needed and that the invoice given to the complainant does not specify how many emitters were to be provided to each plant and trees. The trees have 3 emitters and the plants one. The complainant informed me that he does not want the respondent back on his property and the respondent informed me that he is not retuning regardless of the outcome of the jobsite.

I found the following: 1: Drip system is inadequate: All the emitters were providing water to all areas, I could not determine if the system was inadequate, number of emitters and type not specified. 2. The contractor is very hostile towards me: I lack jurisdiction.

7. On April 19, 2011, the Registrar of Contractors issued a letter giving the parties written notice that it would not issue a written citation in this matter and gave the Complainant 10 business days to file additional information. 8. The Complainant then requested an administrative hearing. 9. The credible testimony and evidence of record is inadequate and fails to support a finding that the Respondent’s workmanship at the Complainant’s residence fails to comply with applicable workmanship and industry standards. 10. The credible testimony and evidence of record is inadequate and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 11. There was no dispute that on April 6, 2011, the assigned Agency Inspector issued a letter to the Respondent informing him of Arizona laws regarding the proper display of his license number. 12. Credible testimony and evidence established that the Respondent is now in full compliance with the applicable provisions of A.R.S. § 32-1124 B (display of license). 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 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) (departure from or disregard of plans or specifications or any building codes), 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), and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license), 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, September 21, 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