ALJDEC decisions subject to certification as final

2011A-3956-ROC · Registrar of Contractors · 2012-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Martin Craven. 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-53 (No. 235645) License issued by the Registrar of Contractors. 2. This is a residential matter in which on June 29 and June 30, 2011, the Respondent performed repair work on the Complainant’s existing water well. 3. Credible testimony and evidence established that after the repair work was completed, the water well was re-sealed by the Respondent. 4. After the repair to the water well was completed the parties, became embroiled in a dispute regarding the cost of the repair work to the water well. 5. The Complainant was dissatisfied with the Respondent’s workmanship and filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. There was no on-site inspection of the Complainant’s water well because the Complainant’s water well had been re-sealed and there was nothing for the Agency Inspector to visually inspect. 7. The Complainant asserts that the Respondent utilized the wrong size and type of riser pipe, that no safety straining cable was installed, that no torque arrestors were utilized, that the Respondent failed to provide a written quotation before the work was performed, that that the Respondent had harassed the Complainant for payment for the unsatisfactory repair work on her water well. 8. The Respondent asserts that the Respondent utilized the same size and type of pipe utilized in the construction of the water well, that safety wires were installed, and that torque arrestors were properly installed. 9. Credible testimony and evidence established that the Respondent constructed the Complainant’s water well in 2004 and that the Respondent performed repair work on the water well after being contacted by the Complainant’s son who allegedly informed the Respondent that it was an emergency situation because the Complainant’s residence and the Complainant’s horses had been without water for two days. 10. Credible testimony and evidence established that the Respondent utilized the same size of pipe and water pump for the water well repair as the Respondent had utilized in the original construction of the Complainant’s water well. 11. The credible testimony and evidence is insufficient and fails to support a finding that the Respondent failed to utilize safety wire in new water pump installation. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to utilize torque arrestors in new water pump installation. 13. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans, specifications or any building codes in its repair work on the Complainant’s water well. 14. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its repair work on the Complainant’s water well in a professional and workmanlike manner. CONCLUSIONS OF LAW 1. The Complainant has 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 credible testimony and evidence of record is insufficient and fails to support a finding of violations by Respondent of 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) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner) as charged in the Citation. 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, January 17, 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