ALJDEC decisions subject to certification as final

2011A-4246-ROC · Registrar of Contractors · 2012-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2012, at 8:00 a.m. APPEARANCES: The Complainants appeared through Darrell Harmon. The Respondent appeared through its attorney, Scott Shelley. 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 B (No. 166223) License issued by the Registrar of Contractors. 2. This is a residential matter wherein the Complainants purchased a new residence constructed by the Respondent. 3. There was no dispute that the Complainants occupied their new residence on December 8, 2010, and that they immediately observed grout residue on the surface of their new tile floor. 4. Credible testimony and evidence established that the Complainants then promptly notified the Respondent of the problem with the grout residue of the tile floor and that the Respondent made an unsuccessful attempt to remove the grout residue. 5. Credible testimony and evidence established that when the Respondent was unable to remove the grout residue, the Respondent then issued a Work Order to a floor cleaning company to properly clean the Complainants’ tile floor with instructions to fully remove the grout residue from the Complainants’ tile floor. 6. Credible testimony and evidence established that the Complainants’ tile floor was cleaned on January 27, 2011, and that the grout residue was properly removed from the Complainants’ floor tile. 7. After the grout residue was removed from their tile floor the Complainants became dissatisfied with the appearance of the tile grout in their tile floor and notified the Respondent of their dissatisfaction. 8. Credible testimony and evidence established that the Respondent’s warranty and service manager then examined the Complainants’ tile grout and declined to take any action on the basis that discoloration the tile grout was allegedly a homeowner maintenance issue rather than a problem with the tile grout. 9. When the Respondent refused to take any action regarding their dissatisfaction with the appearance of their tile grout, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and examined the grout in the Complainants’ tile floor. 11. On August 31, 2011, the Registrar of Contractors issued a letter informing the parties that after investigation the Registrar of Contractors had determined that the grout discoloration on the Complainants’ tile floor was the result of normal foot traffic in the Complainants’ home and that no citation would be issued against the contractor. 12. The Complainants disagreed with the determination of the Registrar of Contractors and requested an administrative hearing. 13. There was no dispute that some of the tile grout in the Complainants’ residence is discolored. 14. The credible testimony and evidence of record is insufficient and fails to support a finding that the discolored tile grout in the Complainants’ residence is the result of any action or inaction by the Respondent. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the installation of the grout in the Complainants’ tile floor failed to comply with applicable industry and workmanship standards. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the grout in the Complainants’ tile floor has failed. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to properly display its license number with the acronym “ROC” in violation of the charged provisions of A.R.S. § 32-1124 (B). 18. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent is responsible for performing any corrective action on the grout in the Complainants’ tile floor. CONCLUSIONS OF LAW 1. The Complainants have 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 Complainants failed to sustain their burden of proof to establish that the Respondent violated 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) and A.R.S. § 32-1154 (A) 13), namely, A.R.S. § 32-1124 (B) (display of license), and A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) 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, February 14, 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