ALJDEC decisions subject to certification as final

2011A-5077-ROC · Registrar of Contractors · 2012-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Patrick Davis. The Respondent appeared through its authorized representative, Robert Swagerty. 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, New Legacy Building and Design Incorporated, is the holder of License No. B.199643-R issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed construction work as a subcontractor on several residences for which the Complainant was acting in its capacity as a licensed general contractor. 3. The complaint at issue concerns a residence located at 2231 E. Calle Arroyo Lindo, Tucson, Arizona. 4. There was no dispute that the Respondent had performed construction work on the residence as a subcontractor for the Complainant. 5. There was no dispute that the residence had been foreclosed on and had sat empty for a period of several months. 6. When the residence was sold, the entity which owned the residence notified the Complainant that there were warranty items in the residence that had to be taken care of before a sale of the residence could be completed. 7. The Complainant then traveled to Tucson from Phoenix and corrected the six (6) items of warranty work requested by the owner. 8. The Complainant then filed the complaint at issue against the Respondent asserting that the Respondent should pay the Complainant for its time, labor and material in the total sum of $1,162.75 for the six (6) items of warranty work the Complainant performed at the residence at issue. 9. Credible testimony and evidence established that the Complainant did not notify the Respondent of the requested warranty work until the Complainant filed the complaint at issue with the Registrar of Contractors. 10. Credible testimony and evidence established that Respondent had no responsibility for correcting four (4) of the six (6) items of requested warranty work. 11. Credible testimony and evidence established that the Respondent did not have an opportunity to examine and possibly correct the two (2) items of requested warranty work that the Respondent may have been responsible for correcting. 12. Credible testimony and evidence established that the Respondent would have performed whatever warranty work that it may have been responsible for had it received reasonable notice of the request for warranty work. 13. Credible testimony and evidence established that the Respondent was never given an opportunity to inspect the complained of construction work. 14. Undisputed credible testimony and evidence established that the Respondent’s construction work had been altered or modified prior to the filing of the complaint at issue. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned a contract or refused to perform without legal excuse. 16. 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. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its work in a professional and workmanlike manner. 18. Notice is taken of the Respondent’s prior License record as reflected by the Registrar of Contractors public website on March 23, 2012. Such prior License record reflects that License No. B.199643-R of New Legacy Building and Design Incorporated was current and in good standing. 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). 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 its burden of proof to establish that the Respondent violated the applicable charged provisions of A.R.S. § 32- 1154 (A) (1) (abandonment or refusal to perform without legal excuse), A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), 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, March 23, 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