ALJDEC decisions subject to certification as final

2011A-4730-ROC · Registrar of Contractors · 2012-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2012, at 1:00 p.m. APPEARANCES: The Complainants appeared through Greg Wilkins. The Respondent appeared through its authorized representative, Chad Backus. 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 KA-5 (No. 222563) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed tile cleaning, tile repair, flagstone repair, and an acid wash on the Complainants’ existing swimming pool. 3. The Complainants were dissatisfied with the appearance of their swimming pool plaster and with the Respondent’s refusal to correct its work to their satisfaction, despite their demands that it do so. 4. When the Respondent failed to comply with the Complainants’ demands, 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 on-site inspection. 6. On September 20, 2011, the Registrar of Contractors issued a written determination that a citation would not be issued based, as follows: Minor shading or mottling of the plaster finish is acceptable. It is the opinion of this inspector that there is no detriment to the plaster finish or to the appearance of the pool.

7. The Complainants disagreed with the determination and requested an administrative hearing. 8. Credible testimony and evidence established that the plaster in the Complainants’ swimming pool does evidence shading or mottling and that there are minor plaster cracks by the steps of the swimming pool. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that the shading or mottling and the minor plaster cracks in the Complainants’ swimming pool were caused by the Respondent’s acid wash of the swimming pool plaster. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship on the Complainants’ swimming pool failed to comply with applicable industry and workmanship standards. 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 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) 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 9, 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