ALJDEC decisions subject to certification as final

2011A-800-ROC · Registrar of Contractors · 2011-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Warren Graves. 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 K-9 (No. 145363) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent removed the Complainant’s existing driveway and replaced it with a new concrete driveway with integral color. 3. The Complainant was extremely dissatisfied with the appearance of the new concrete driveway and complained to the Respondent. 4. When the Respondent failed to resolve the Complainant’s dissatisfaction with the appearance of the new driveway, the Complainant 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 onsite inspection and on February 23, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The written Corrective Work Order provides, in pertinent part, as follows: Contractor to correct the following by appropriate means: Concrete has numerous pits due to poor finishing procedures: There are a few areas the [sic] show pitting and finish not uniform along the control joints, needs to be properly corrected.

No action is required on the following: Concrete drive way not uniform in color due to Craftmaster [sic] Concrete applying sealant before colored concrete was cured: I could not determine if this was caused by the actions of the respondent, Per the Workmanship Standards book, Concrete Page-9: Color and shade variations are inherent in all portland cement- based products. These variations may occur and are generally acceptable. These differences can be attributed to a wide variety of causes. Some causes include variable jobsite conditions and changes in aggregate source, age, degree of curing, and specified slab substrate.

7. Credible testimony and evidence established that the Respondent did perform corrective work on the Complainant’s concrete driveway and that the concrete driveway has now been corrected to within applicable workmanship and industry standards. 8. Credible testimony and evidence established that the Respondent has fully complied with the terms of the written Corrective Work Order. 9. The Complainant is still very dissatisfied with the variations of color in the new concrete driveway and asserts that the driveway should be removed and replaced. 10. The book of Workmanship Standards for Licensed Contractors, February 2009, page 9, provides, in relevant part, as follows: Color and shade variations are inherent in all portland cement- based products. These variations may occur and are generally acceptable. These differences can be attributed to a wide variety of causes. Some causes include variable jobsite conditions and changes in aggregate source, age, degree of curing, and specified slab substrate.

11. Credible testimony and evidence established that the color and shade variations present in the Complainant’s concrete driveway are within applicable workmanship and industry standards. 12. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 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). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record failed to sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) and 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, September 13, 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