ALJDEC decisions subject to certification as final

2011A-737-ROC · Registrar of Contractors · 2011-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Gary R. Blume. 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 KB-2 (No. 182054) License issued by the Registrar of Contractors. 2. There was no dispute that this is a residential matter where the Respondent performed water remediation work on the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and asserted that the Respondent had failed to notify her and her daughter of the toxicity and corrosiveness of the chemicals sprayed in her residence and that the Respondent failed to protect the Complainant’s personal items and furniture in the home when the Respondent performed its water remediation work. 4. The Complainant demanded that the Respondent properly compensate her for her damages allegedly caused by the Respondent’s actions. 5. When the Respondent declined to comply with the Complainant’s demand for payment of damages, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection. 7. The assigned Agency Inspector found no evidence that the Respondent’s water remediation work failed to comply with applicable workmanship and industry standards, and the Registrar of Contractors declined to issue a Citation without further information. 8. The Complainant then requested an administrative hearing. 9. The Registrar of Contractors then issued the formal Citation and Complaint at issue. 10. The Complainant asserts that her daughter has suffered pain, suffering, and physical distress as a result of the Respondent’s water remediation work on the Complainant’s residence. 11. The Complainant asserts that she has suffered pain, suffering and physical distress as a result of the Respondent’s water remediation work on the Complainant’s residence. 12. The Complainant asserts that her residence is now unlivable and seeks consequential damages in the sum of $438,000.00 in addition to the alleged damage to her residence. 13. There was no credible evidence that the Respondent damaged the Complainant’s residence. 14. There was no credible evidence that the Respondent’s water remediation work on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 15. The Complainant’s claim for monetary damages for alleged pain, suffering and physical distress must be pursued, if at all, in a civil court of competent jurisdiction. CONCLUSIONS OF LAW 1. The Complainant has 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 Complainant failed to sustain her 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). 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, December 20, 2011.

/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