ALJDEC decisions subject to certification as final

2011A-2404-ROC · Registrar of Contractors · 2011-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Tim Trosper. 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-37 (No. 056653) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed service work on a toilet in a rental residence owned by the Complainant. 3. There was no dispute that the Respondent installed a new wax ring as part of its service work on the toilet at issue. 4. Credible testimony and evidence established that the tenant of the rental residence experienced water flooding from the toilet within four days of the service work performed by the Respondent. 5. The Complainant then demanded that the Respondent reimburse her for the water damages caused by the toilet in the rental unit in the sum of $423.00 and for the return of the $290.14 that the Complainant paid the Respondent for its service work on the toilet at issue. 6. When the Respondent declined to comply with the Complainant’s demands, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection. The Registrar of Contractors then moved to close the complaint on the following basis: 1. Reimburse me for damages $423.00 and overcharges $290.14: I lack jurisdiction. 2. Toilet leaking: After flushing toilet numerous times no leaks could be found, I could not determine the contractor’s responsibility.

8. The Complainant disagreed with the determination to close the complaint and requested an administrative hearing. 9. There was no dispute that the toilet at issue has flooded on several occasions and that the Complainant has suffered consequential damages as a result of the water flooding from the toilet. 10. Credible testimony and evidence presented at hearing established that the new wax ring installed by the Respondent did not leak. 11. Credible testimony and evidence established that the Complainant has now had the toilet serviced by an alternative licensed plumbing contractor and that the flooding problem with the toilet in the rental residence continues to occur. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s plumbing work on the Complainant’s rental residence failed to comply with applicable workmanship and industry standards. CONCLUSIONS OF LAW. 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged section 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). It “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). 3. 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 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, December 6, 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