ALJDEC

99F-H0253-ROC · Registrar of Contractors · 2000-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2000, at 8:30 a.m.. APPEARANCES: The Complainant appeared on her own behalf. Respondent Jerry Bloor d.b.a. Fort Mohave Homes appeared on his own behalf. Respondent Burright Construction Inc., appeared through its attorney, Rick Williams. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

These matters came on for consolidated hearing on March 2, 2000. The Complainant appeared on her own behalf. Respondent Jerry Bloor d.b.a. Fort Mohave Homes appeared on his own behalf. Respondent Burright Construction appeared through its attorney, Rick Williams. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT

1. Respondent Jerry Bloor d.b.a. Fort Mohave Homes is the holder of a Class B- License issued by the Registrar of Contractors. 2. Respondent Burright Construction, Inc. is the holder of a Class B-04 License issued by the Registrar of Contractors. 3. This is a residential matter where the Respondent Jerry Bloor d.b.a. Fort Mohave Homes constructed a new residence for the Complainant. Respondent Burright Construction Inc., performed work as a subcontractor during the construction process. 4. Burright Construction Inc. installed an alternative onsite disposal system for the Complainant’s residence. 5. The Complainant experienced repeated problems with the alternative septic system. 6. The Complainant was dissatisfied with both of the Respondents’ workmanship and failure to correct their work to her satisfaction despite repeated requests that they do so. The Complainant then filed formal complaints, against both Respondents, with the Registrar of Contractors. 7. Pursuant to the filing of the formal complaints, an assigned Agency Inspector conducted an on-site inspection and issued written corrective work orders directing the Respondents to perform designated corrective work on the Complainant’s residence. 8. Credible evidence established that Respondent Fort Mohave Homes performed corrective action on all of the items set forth in the corrective work order and that the only item still at issue was the alternative septic system. 9. Credible evidence, produced at hearing, established that Respondent Burright Construction Inc. did perform corrective action on the alternative septic system and that the alternative septic system was functioning as designed. 10. Credible evidence established that the alternative septic system requires periodic maintenance to function properly and that the performance of the periodic maintenance is the responsibility of the homeowner. 11. Credible evidence, produced at hearing, established that Respondent Jerry Bloor d.b.a. Fort Mohave Homes did inform the Complainant of the necessity of an alternative septic system for the lot that the Complainant wanted her new residence constructed on and that the said Respondent offered the Complainant an alternative lot with a common septic system. 12. Credible evidence established that the Complainant knowingly chose the lot that required the use of an alternative septic system. 13. Notice is taken of the Respondents’ prior License records with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent violated the charged sections of the State’s Contracting laws. See 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 it 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. The credible evidence of record supported findings that all of the items set forth in the corrective work orders had been corrected to within applicable industry standards and that the alternative septic system is functioning as it is designed to function. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by either Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citations at issue.

RECOMMENDED ORDERS

1. In view of the foregoing, it is recommended that Citation No. H99-0253, together with the Complaint against Burright Construction Inc. upon which it is based, be closed. 2. In view of the foregoing, it is recommended that Citation No. H99-0255, together with the Complaint against Jerry Bloor d.b.a. Fort Mohave Homes upon which it is based, be closed. Done this day, March 15th, 2000.

______________________________________ M. DOUGLAS Administrative Law Judge

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

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

By _______________________________

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

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488