ALJDEC decisions subject to certification as final

2011A-4061-ROC · Registrar of Contractors · 2012-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2012, at 1:00 p.m. APPEARANCES: Complainant appeared on his own behalf. Respondent C T I of Maryland, Inc. dba Creative Touch Interiors appeared through its authorized representative, Lindsay Anderson. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommendation are made: FINDINGS OF FACT 1. Respondent is the holder of License No. K-5.252106-D issued by the Registrar of Contractors. 2. This is a residential matter where Respondent furnished and installed new granite countertops on a new residence constructed for Complainant. 3. Complainant was dissatisfied with the colors in the new granite countertops in his residence and notified Respondent that the wrong granite had been installed in Complainant’s residence. 4. Complainant notified Respondent that the installed granite countertops were a darker peach color granite rather than the light lemon color granite selected by Complainant. 5. Respondent inspected the granite countertops and declined to replace the granite countertops on the basis that the color variation in the granite countertops was within applicable industry standards. 6. Respondent agreed to have Complainant’s granite countertops inspected by an independent granite expert. 7. Credible testimony and evidence established that an independent granite expert then inspected Complainant’s granite countertops and found the color variation between the installed granite countertops and Complainant’s granite sample to be a color variation within applicable industry standards. 8. After Respondent declined to replace the granite countertops, Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on September 8, 2011, informed the parties that he had determined to close the complaint on the basis that the color variation between the installed granite countertops and the Complainant’s granite sample was within standards for a natural stone product.[1] 10. Complainant disagreed with the assigned Agency Inspector’s determination and requested an administrative hearing. 11. Complainant testified that the installed granite countertops were the wrong color of granite rather than simply a color variation from the granite selected by Complainant. 12. The assigned Agency Inspector testified that he personally observed Complainant’s granite countertops and found the difference in appearance between Complainant’s color sample and the installed granite countertops to be a color variation that is within applicable workmanship and industry standards for a natural stone product. 13. Ralph Williamson testified that he was an independent granite expert and that he had personally observed the granite countertops in Complainant’s residence and opined that the difference in appearance between Complainant’s sample granite and the installed granite countertops was an acceptable color variation within applicable workmanship and industry standards for a natural stone product. 14. There was no credible evidence that the granite countertops installed in Complainant’s residence were the wrong color of granite. 15. There was no credible evidence that Respondent departed from or disregarded plans or specifications in its installation of granite countertops in Complainant’s residence. 16. There was no credible evidence that Respondent failed to perform its construction work in a professional and workmanlike manner. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). 3. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain 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), and A.R.S. § 32-1154(A)(3), namely, A.A.C. R4- 9-108 (failure to perform work in a professional and workmanlike manner). 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, May 15, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit R-1, page 17.

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