ALJDEC

98F-1621-ROC · Registrar of Contractors · 1998-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 30, 1998. APPEARANCES: D.M. Velasquez, Complainant, appeared on her own behalf and that of her partner, R. Amaya. Jack Henry Dykstra appeared representing J.H. Dykstra Company, Respondent and holder of class A license number 073760.

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 Complainants 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. D.M. Velasquez and R. Amaya, Complainants, own real property located at 11044 N. Cave Creek, Phoenix, Arizona. 2. J.H. Dykstra Company, Respondent, is holder of class A license number 073760. Jack Henry Dykstra is the president and owner of Respondent, an excavation firm. 3. This matter arises out of an excavation project. Michael Meives hired Respondent to excavate some footings for a new building on his property. Mr. Meives’ property is located northeast and across a street from Complainants’ property in issue here. Complainants allege that Respondent dumped material from the excavation project on their property. The preponderance of the evidence demonstrates that, as of the date of the hearing in this matter, the debris in issue had been removed from Complainants’ property. 4. Respondent conducted the excavation in this matter in December 1997. The preponderance of the evidence demonstrates that Mr. Meives instructed Respondent to dump the excavated material on a lot to the west of his property, directly across a street from Complainants’ property. 5. Complainants charge, specifically, that Respondent, in fact, dumped the excavation material in issue on their property, rather than on the lot Mr. Meives directed Respondent to dump the debris. In support of this contention, Ms. Velasquez testified that one of Respondent’s employees, Jesus Herrera, admitted at the time of the excavation that he dumped one pile of debris on her property. However, during the hearing in this matter, both Mr. Dykstra and Mr. Herrera denied dumping any debris on Complainant’s property. 6. On February 5, 1998, Phil Coscia, Inspector for the Registrar, conducted an inspection of the dumping site in issue, as well as the excavation site and the lot west of Mr. Meives’ property. During the hearing in this matter, Inspector Coscia testified that his observations were inconclusive in establishing that Respondent dumped material on Complainants’ property. Specifically, Inspector Coscia testified that he found no debris indicative of the excavation site--orange-painted asphalt-- in the piles of debris on Complainants’ property. Rather, Inspector Coscia testified that he found debris matching that of the excavation site located where Mr. Meives instructed Respondent to dispose of the debris; that is, directly west of Mr. Meives’ property. 7. Based on the foregoing, the preponderance of the evidence fails to establish that Respondent improperly dumped excavation material on Complainants’ property.

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: 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 statute above, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statute. 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. Complainants fail their burden of demonstrating fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct, Complainants again fail their burden of demonstrating a violation of State law. While the evidentiary record discloses some evidence that Respondent dumped one pile of excavated material on Complainants’ property, the preponderance of the evidence is inconclusive, particularly in light of Inspector Coscia’s observations.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that no action be taken against Respondent in this matter, and that the Citation and Complaint be dismissed. Dated this day, July 6, 1998.

______________________________________ Kip M. Micuda Administrative Law Judge

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

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