ALJDEC decisions subject to certification as final

2011A-2616-ROC · Registrar of Contractors · 2012-02-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 21, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Jerry Laney. The Respondent appeared through its authorized representative, Matt Horn. 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-5 (No. 239390) License issued by the Registrar of Contractors. 2. The Complainant is the owner of a rental residence located at 2201 E. Oregon Tucson, Arizona. 3. Credible testimony and evidence established that a toilet overflowed in the Complainant’s rental residence and the occupant of the residence contacted the Complainant’s daughter. 4. The Complainant’s daughter then contacted a plumber who unstopped the toilet and recommended that she contact the Respondent for recommended water remediation work. 5. Credible testimony and evidence established that the Complainant’s daughter then contacted the Respondent and the Respondent performed water remediation work in the residence and issued an invoice to the Complainant for the sum of $3,814.63. 6. Credible testimony and evidence established that the water remediation work included removing drywall and cabinets that were allegedly water damaged. 7. Credible testimony and evidence established that the rental residence was initially uninhabitable as a result of the water damage and the water damage remediation work that was performed by the Respondent. Consequently, the Complainant was unable to rent the residence until the residence was restored to habitable condition. 8. Credible testimony and evidence established that the Complainant was required to spend several thousand dollars to bring the rental residence at issue to within habitable standards. 9. When the Complainant’s insurance carrier declined to cover the water restoration work, the Complainant became very dissatisfied with the Respondent’s work and asserted that the Respondent performed far more work than was necessary and caused extensive damage to the interior of her rental residence. 10. Credible testimony and evidence established that when the Complainant declined to the pay the Respondent for its remediation work, the Respondent filed a preliminary lien notice on the rental residence at issue and the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector reviewed the matter and moved to close the Complaint on the basis that it was a disputed money matter which should be resolved in a civil court of competent jurisdiction. 12. The Complainant disagreed with the Inspector’s determination and requested an administrative hearing. 13. The Complainant asserts that the Respondent’s water remediation work was performed without her authorization or agreement and that the Respondent fraudulently performed water remediation work beyond the scope of anything necessary to resolve any problems caused by a toilet overflow. 14. Credible testimony and evidence established that the Complainant’s daughter signed a work authorization for the Respondent to perform the water remediation work on the rental residence at issue. 15. Credible testimony and evidence established that the Complainant was aware of the fact that the Respondent was performing water restoration work on her rental residence. 16. There was no credible evidence that the Respondent departed from or disregarded plans or specifications, or any building codes in this matter. 17. The credible testimony and evidence is insufficient and fails to support a finding that the Respondent performed more water remediation work than was necessary on the Complainant’s rental residence. 18. The credible evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act in this matter. 19. The parties’ monetary dispute regarding the Complainant’s claim for money damages for her cost of restoring the residence to rental condition, and the Respondent’s claim for payment for the water remediation work that it completed in the Complainant’s rental residence, is found to constitute a good faith money dispute which can be resolved in a civil court of competent jurisdiction. 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). 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 credible testimony and evidence of record failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154 (A) (7) (the doing of a fraudulent act) as set forth 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, February 29, 2012.

/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