ALJDEC

98F-2566-ROC · Registrar of Contractors · 1999-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 1999. APPEARANCES: Mike and Cheryl Hirsch, Complainants, appeared on their own behalf. Bradley Kent Smith, Respondent doing business as Smith and Son Custom Contractors and holder of class B license number 128197, appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________

The hearing in this matter was held for the purpose of determining whether Respondent violated the mediation agreement between the parties and, therefore, 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. Mike and Cheryl Hirsch, Complainants, reside at 10425 N. Central, Phoenix, Arizona. 2. Bradley Kent Smith, Respondent, does business as Smith and Son Custom Contractors and holds class B license number 128197. 3. This matter arises out of a new home construction. However, the parties entered a Mediation Agreement on November 10, 1998. (See Attachment A). The agreement calls for Complainants to pay Respondent the total sum of $8,000.00 in exchange for Respondent releasing liens and delivering an outside spiral staircase. 4. The preponderance of the evidence establishes that Complainants paid Respondent the initial sum of $4,000.00, per the agreement, and that Respondent released the liens in issue. 5. The preponderance of the evidence establishes further that Respondent delivered to Complainants, nine days after the agreement, a spiral staircase assembly without the necessary center pole. Complainants gave Respondent a check for the remaining $4,000.00, but subsequently stopped payment on the check. 6. During the hearing in this matter, Complainants charged that Respondent violated the Mediation Agreement, in part, by failing to deliver a complete staircase assembly. The preponderance of the evidence establishes that Respondent delivered what he possessed respecting the assembly. Nevertheless, the assembly required a center pole that was not included. Even though Respondent delivered what he possessed respecting the assembly, and Complainants refused his offer to obtain a pole elsewhere, Respondent should have obtained a pole and attempted to deliver it to Complainants. 7. Complainants obtained a center pole elsewhere. The fair market value of the pole is $100.00. 8. During the hearing in this matter, Complainants charged also that Respondent violated the Mediation Agreement by failing to deliver a staircase assembly that met the specifications of the job. The evidence presented by the parties on this issue is inconsistent and insufficient to make a finding in favor of Complainants.

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 statutes above, Complainants 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. Complainants fail their burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct, Complainants sustain their burden of demonstrating a violation. The Mediation Agreement between the parties is a legally binding agreement that resolves this matter by requiring that each party perform certain acts. It has the legal effect, in this matter, of limiting the scope of this proceeding to determining whether Respondent complied with the agreement. The agreement requires, in part, that Respondent deliver a spiral staircase. Implicit in the agreement is that the staircase assembly be complete and adequate for the job. Complainants demonstrate sufficient evidence that Respondent’s failure to deliver an assembly including a center pole constitutes a violation of §32-1154A(7).

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. It is further recommended that Respondent have an opportunity to avoid suspension of his license. If Respondent pays Complainants restitution in the sum of $100.00 on or before the final order’s effective date, then no license suspension will take place and the Citation and Complaint in this matter will be closed. It is anticipated that, upon Respondent’s payment of the restitution, Complainants will perform their final obligation under the agreement. Done this day, April 15, 1999.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826