ALJDEC decisions subject to certification as final

2011A-2640-ROC · Registrar of Contractors · 2011-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, David A. McCarville. The Respondent appeared through its attorney, Fidelis V. Garcia. 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’s Class B (No. 110569) License was inactive from July 18, 2002 through July 18, 2007, and again placed on inactive status on July 18, 2007. 2. This is a residential matter where on March 17, 2010, the Complainant purchased a residence located at 21151 West Sunrise Lane, Buckeye, Arizona. 3. There was no dispute that the residence had been previously utilized as a model home by both the contractor that constructed the residence and by the developer of the construction project. 4. The Complainant was dissatisfied with his new residence and filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. The Complainant alleges that the Respondent misrepresented the actual year of construction of the residence and that the Respondent misrepresented the Complainant’s residence as being a single family residence rather than a townhouse. 6. Pursuant to the filing of the Complaint, the Registrar of Contractors issued a Citation and Complaint against the Respondent charging the Respondent with possible violations of the provisions of A.R.S. § 32-1154 (A) (16) (False, misleading or deceptive advertising whereby any member of the public may be misled and injured). 7. Undisputed credible testimony and evidence established that the Respondent did not construct the Complainant’s residence. 8. Undisputed credible testimony and evidence established that the Respondent, Frank Development Group Inc., also holds a real estate broker’s license issued by the State of Arizona. 9. Credible testimony and evidence established that the Respondent was one of the real estate brokers involved in the sale of the residence at issue. 10. Undisputed credible testimony and evidence presented at hearing established that the Complainant’s residence is a single family residence. 11. There was no dispute that the Complainant’s residence was constructed in 2006 and that the residence was utilized as a model home until it was sold to the Complainant. 12. Credible testimony and evidence established that an Multiple Listing Service (MLS) listing that was prepared by a sales agent employed as an independent sales contractor by the Respondent misidentified the date of the construction of the residence at issue as being 2008 rather than 2006. 13. Credible testimony and evidence established that previous MLS listings had identified the date of construction of the residence at issue as being 2006. 14. Credible testimony and evidence established that the MLS listing with the 2008 date was not intended to be available to the general public and that the listing specifically provides that all information should be verified by the recipient and that none of the information is guaranteed as accurate by the listing service. 15. Credible testimony and evidence established that the Complainant’s lending institution conducted an appraisal of the residence at issue before funding the loan for the residence to the Complainant. 16. There was no dispute that the local county tax authority lists the Complainant’s residence as being constructed in 2008 rather than 2006. 17. Credible testimony and evidence established that the decision by the local tax authority to list the Complainant’s residence as being constructed in 2008 rather than 2006 was based on the local tax authorities’ general policy of listing new houses on the local government’s tax roll. 18. There was no credible testimony or evidence that the Respondent had anything to do with the local taxing authority’s decision to list to the Complainant’s residence as being constructed in 2008 rather than 2006. 19. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed false, misleading or deceptive advertising whereby any member of the public may have been mislead and injured. 20. 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). 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 his burden of proof to establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (16) (False, misleading or deceptive advertising whereby any member of the public may be misled and injured. 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, October 31, 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