ALJDEC

98F-0213-ROC · Registrar of Contractors · 1998-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 1998. APPEARANCES: Richard Busch, Complainant, appeared on his own behalf. Jeff Whitesell appeared representing Respondent.

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. Richard Busch, Complainant, resides at 6124 W. Whispering Wind Drive, Glendale, Arizona. 2. Dan L. Earlie, Respondent, is president of Earlie Homes & Associates and is holder of Class B license No. 095224. 3. This matter arises out of Complainant’s charge against Respondent that Respondent engaged in unworkmanlike efforts in constructing his residence, as well as in performing corrective work. 4. The preponderance of the evidence demonstrates that several items constructed by Respondent fall below workmanship standards. As a consequence, the following items require corrective action: 1) northwest corner post requires proper brackets and support to ensure its suitability for its intended purpose; 2) garden tub makes abnormal cracking sounds; 3) exterior stucco has cracks and requires paint matching; 4) interior drywall requires paint matching and inspection by Respondent to ensure cracks are repaired correctly; and 5) broken roof tile above third bedroom requires replacement. 5. Respondent is responsible for the original construction and repair of the foregoing items.

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 violations. “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 paragraph 4 of the Findings of Fact above constitute violations 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 on 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 items set forth in paragraph 4 of the Findings of Fact above It is further recommended that if Respondent accomplishes the above- described corrective work before the effective date of the final order entered in this matter, then the aforementioned indefinite license suspension shall not take place and the Complaint and Citation shall be closed. Done this day, May 6, 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 ___________________________

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