ALJDEC

99F-F0309-ROC · Registrar of Contractors · 2000-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On March 30, 2000, at 1:30 p.m., a hearing was scheduled to determine if Respondent had violated provisions of A.R.S. (32-1154(A). Complainant was present telephonically. Respondent was not present. Registrar of Contractors Inspector Mark Schweiger was present. Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law and Recommended Order are submitted to the Director of the Registrar of Contractors. FINDINGS OF FACT Complainant entered into a contract with Respondent on July 22, 1996, for the construction of a new home located at 502 Highline Lane, Camp Verde, Arizona. The contract price was $159,316.52. Respondent was paid in full by Complainant. Complainant’s move-in date was July 10, 1997. Complainant filed a complaint with the Registrar of Contractors on April 8, 1999. On May 4, 1999, ROC Inspector Mark Schweiger conducted a jobsite inspection. On May 27, 1999, Inspector Schweiger issued a Corrective Work Order to Respondent. The Corrective Work Order indicated: c. the relief vent on the roof above the Northwest pool exhaust register does not appear to be weather tight; correct by appropriate means; d. redwood threshold supports at 2 sliding doors, adjacent to the pool area appear hammer marked, cracked, and splintered contrary to industry standards; correct by appropriate means; e. the sliding glass door at the Southeast portion of the residence appears to bind prior to the full open position contrary to industry standards; the contractor shall determine the cause and correct by appropriate means; f. ceramic tile cracks at the kitchen back splash appear excessive; correct by appropriate means; g. site wall cracks in the back yard appear to have been repaired, but unpainted per industry standards; correct by appropriate means.

On July 2, 1999, Inspector Schweiger conducted a second jobsite inspection. He testified that some work had been done on the sliding glass door, however, it was still difficult to operate. Inspector Schweiger further testified that the industry standard is ease of operation, and a considerable amount of pressure must be applied to open this door. Inspector Schweiger testified that the other attempted improvements were still not within industry standards. There was a droop in the door frame, drywall cracks were present, and the screen door did not work. The Belaire window was installed upside down and was dangerous to operate. The spout in the bathtub did not engage properly. Inspector Schweiger testified that there was only partial compliance with the Corrective Work Order issued on May 27, 1999. On August 3, 1999, Inspector Schweiger issued an addendum to the May 27, 1999 Corrective Work Order, adding the following items in need of repair: k. the tub/shower spout appears to run a stream when the shower is engaged, contrary to manufacturer’s recommendations; correct by appropriate means; l. the sliding glass door at the South garage area does not appear to operate easily per industry standards; the contractor shall correct this door operation for a smooth, easy function, and repair drywall deficiencies adjacent to the door by appropriate means.

Complainant testified that there have been no further attempts at compliance with either the original Corrective Work Order or the addendum to the Corrective Work Order. This tribunal is sensitive to the fact that the holder of License No. 102809, Class B, of Truman Lawrence Newton, dba Newton Development Co. (Indiv.), is deceased. Nevertheless, under the facts and circumstances of the case at hand, Complainant has the right to have this matter proceed to final disposition, requiring the Registrar of Contractors to impose appropriate disciplinary sanctions as warranted by the facts herein. CONCLUSIONS OF LAW The Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence.[1] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. ((32-1154(A)(3), namely R4-9-108 and 32-1154(A)(7), as set forth in Findings of Fact ## 2, 3, 4, 5, and 6. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. (32-1154(A)(23), as set forth in Findings of Fact ## 3, 4, 5, and 6.

RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter. Based on all of the facts and circumstances of the instant case, the undersigned Administrative Law Judge recommends to the Director of the Registrar of Contractors, that Complainant be allowed to proceed directly to the Contractors’ Recovery Fund. Done this day, April 11, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of April, 2000, to:

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

By ___________________________

----------------------- [1] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). [2] Morris K. Udall, Arizona Law of Evidence, (5 (1960). [3] Black’s Law Dictionary, 1182 (6th ed. 1990).

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

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826