ALJDEC decisions subject to certification as final

2011A-3798-ROC · Registrar of Contractors · 2012-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Daniel Cappello. 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-5 (No. 242567) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new garage door opener in the Complainant’s garage on March 15, 2011, for the total sum of $367.69. 3. The Complainant was dissatisfied with the operation of the new garage door opener and demanded that the Respondent correct the operation of the new garage door opener to her satisfaction or return the Complainant’s money to her. 4. When the Respondent failed to comply with the Complainant’s demands, the Complainant 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 on-site inspection and moved to close the complaint on the following basis: At the inspection I asked the complainant to open and close the garage door opener about eight to ten times. The opener worked properly each time.

6. The Complainant disagreed with the Inspector’s determination and requested an administrative hearing. 7. There was no dispute that the only construction work performed by the Respondent was the installation of the new Sears garage door opener on March 15, 2011. 8. Credible testimony and evidence established that the Respondent returned to the Complainant’s residence and tested the new garage door opener several times and could find nothing wrong with the new garage door opener or with the installation of the new garage door opener. 9. Credible testimony and evidence established that the assigned Agency Inspector conducted an on-site inspection of the Complainant’s garage opener on July 14, 2011, and watched the Complainant open and utilize the new garage door opener to open and close the Complainant’s garage door eight to ten times and that the assigned Agency Inspector observed nothing wrong with the operation of the new garage door opener. 10. The Complainant asserted that the new garage door opener made a “zapping” noise when it was operated and that she felt that it was not safely installed by the Respondent. 11. There was no dispute that the Respondent’s License was suspended by the Registrar of Contractors for lack of bond from March 11, 2011 through March 21, 2011 for lack of bond. 12. There was no dispute that Respondent installed the new Sears garage door opener in the Complainant’s garage on March 15, 2011. 13. Credible testimony and evidence established that the Respondent performed contracting work while its license was under suspension. 14. There was no credible evidence that there is anything wrong with the new Sears garage door opener installed by the Respondent. 15. There was no credible evidence that the Respondent’s installation of the Complainant’s new garage door opener failed to comply with applicable workmanship and industry standards. 16. 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 her burden of proof to establish that the Respondent failed to perform its work in a professional and workmanlike manner. Consequently, the credible evidence of record is insufficient to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9- 108. 4. Credible testimony and evidence supported findings which establish a violation by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (18) (contracting while the license is under suspension). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be placed on disciplinary probation for a period of fifteen (15) days. 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, January 12, 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