ALJDEC decisions subject to certification as final

2011A-2721-ROC · Registrar of Contractors · 2011-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2011 at 1:00 p.m. APPEARANCES: The Complainants appeared through Janice Woods. 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-21R (No. 059013) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed landscaping work at the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s refusal to correct his work to their satisfaction despite their repeated requests that he do. 4. When the Respondent declined to comply with the Complainants’ repeated requests, the Complainants 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 Registrar of Contractors then declined to issue a Citation against the Respondent’s License on the following basis: 1) Complaint of: “Pavers white when put down”, jobsite found several small areas of efflorescense [sic], efflorescense [sic] is the result of a naturally occurring reaction and is not a defect, per ROC standards, no action required. 2) Complaint of: “Pavers are whiter than when originally laid”, addressed #1, no action required. 3) Complaint of: “Pavers have little chips”, jobsite found contractor had replaced chipped pavers, no action required. 4) Complaint of: “N.W. corner of pavers, walkway falling apart”, jobsite found NW corner with overhead gutter with no downspout, draining directly at corner of walkway, also hedge with irrigation, causing erosion undermining walkway, homeowner maintenance, no action required. 5) Complaint of: “Edging not done right”, jobsite found edging of pavers set in concrete, even, within industry standards, no action required. 6) Complaint of: “Has not been resolved”, jobsite found pavers within industry standards, no action required. 7) Complaint of: “Yard Decorating Service have [sic] not taken responsibility”, jobsite found pavers within industry standards, no action required.

7. The Complainants disagreed with the determination of the Registrar of Contractors not to issue a Citation against the Respondent’s License and requested an administrative hearing. 8. There was no dispute that some of the pavers utilized by the Respondent in the landscaping work performed at the Complainants’ residence display efflorescence. 9. The Complainants assert that the Respondent utilized substandard pavers and that all of the pavers should be removed and replaced. 10. Credible testimony and evidence, presented at hearing, established that efflorescence is a naturally occurring reaction and is not considered to be a defect. 11. Credible testimony and evidence established that the pavers installed in the Complainants’ yard were within applicable workmanship and industry standards. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship on the landscaping project at the Complainants’ residence failed to comply with applicable workmanship and industry standards. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that 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 Complainants failed to sustain their burden of proof to establish that the Respondent violated the charged sections of the state’s contracting laws. Therefore, the credible testimony and evidence of record did not sufficiently sustain a finding of violations by Respondent of 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), 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, November 2, 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