ALJDEC

97F-M0824-ROC · Registrar of Contractors · 1998-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 1998. APPEARANCES: Martin Roche, Complainant, appeared on his own behalf. Bryan Matock appeared representing Ditz Crane, Inc., Respondent and holder of Class B license No. 099522.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made: FINDINGS OF FACT 1. Martin Roche, Complainant, resides at 316 East Devonshire Drive, Gilbert, Arizona. 2. Ditz Crane, Inc., Respondent, is holder of Class B license No. 099552. Bryan Matock, an employee of Respondent, was authorized to represent Respondent during the hearing in this matter. 3. This matter arises out of Complainant’s charge against Respondent that Respondent engaged in unworkmanlike efforts in constructing a slump block fence around Complainant’s home and in sealing the drywall seams of the family room ceiling. During the hearing, Complainant testified that only the latter issue remains for disposition. 4. During the hearing, Complainant testified that the drywall seams of the family room ceiling are visible under natural light conditions, noting that visitors to the residence, who had no prior knowledge of the issue, have commented on the seams. Complainant added that he has complained to Respondent about this condition since May 1996. Complainant further testified that Respondent has, on at least one occasion, attempted to remedy the problem by repainting the ceiling. Complainant stated that the repainting was unsuccessful. Complainant’s testimony was credible. In further support of his claim, Complainant offered several photographs of the family room ceiling, which Complainant took in the last two months. (Complainant’s Exhibits A-D). The photos do, indeed, show the seams in the ceiling. Complainant also introduced an estimate from another contractor to remedy the seams. (Complainant’s Exhibit E). 5. On or about November 8, 1996, and September 2, 1997, Complainant filed a Complaint with the Registrar concerning the seams in the family room ceiling. 6. On or about December 17, 1997, after inspecting the ceiling in issue, Van Bagley, Inspector for the Registrar, issued a letter to the parties explaining his finding that the seams are within workmanship standards. (Respondent’s Exhibit 2). During the hearing, Inspector Bagley testified that the seams were apparent when a light was directed across the ceiling from a corner, as is the case with most ceilings. 7. Complainant presents a difficult case, given the evidence. However, the preponderance of the evidence demonstrates that the seams in issue are visible under natural light conditions. The preponderance of the evidence also demonstrates that seams that are visible under natural light conditions are outside applicable workmanship standards. (See id.).

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence 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). 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainant sustains his burden of demonstrating a violation. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enter., Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (Ariz. 1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Complainant demonstrates sufficient evidence that Respondent’s actions and/or omissions outlined in paragraphs 4 and 7 of the Findings of Fact above constitute a violation of A.R.S. §§32-1154A(7) and A(3), namely A.A.C. R4-9-108. . . .

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that, commencing thirty (30) days after the effective date of the final order entered in this matter, the Class B license of Respondent be suspended until the Registrar of Contractors receives from Respondent written affirmation that Respondent has accomplished complete, appropriate, and effective remedial work on the seams in issue, described in paragraphs 4 and 7 of the Findings of Fact above. It is further recommended that if Respondent accomplishes the above- described corrective work within the time-frame recommended above, then the aforementioned indefinite license suspension shall not take place and the Complaint and Citation shall be closed. Done this day, April 20, 1998.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007 By ___________________________

----------------------- [1] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826