ALJDEC

99F-M1442-ROC · Registrar of Contractors · 2000-02-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on February 8, 2000, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Carol Keogh, Pro Se. For Respondent: Lisa Gervase Quenzler, Esq., Phoenix.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Complainant purchased a new home constructed by Respondent. As a result of alleged construction deficiencies Complainant filed the instant complaint. As a result of the complaint being filed in this matter, a jobsite inspection was conducted by an assigned inspector for the Registrar of Contractors, which led to the issuance of a corrective work order letter (“CWO”) being sent to Respondent requiring that certain corrective or remedial work be performed within a stated period of time. All of the corrective and/or repair work specified in the CWO has been properly attended to by Respondent and has been accepted by Complainant as completed in a workmanlike manner. At the time the assigned inspector for the Registrar of Contractors conducted the jobsite inspection and after the CWO was sent to Respondent, Complainant took issue with the inspector’s finding that certain complaint items were satisfactorily completed in a workmanlike manner and did not require further work by Respondent. In addition, Complainant now is alleging certain other construction deficiencies exist, which deficiencies have not previously been brought to the attention of Respondent either at the time the final walk through inspection was memorialized or at the time of the Registrar of Contractors’ inspection. See Complainant’s Ex. 2. It is not necessary to discuss each item listed on Exhibit 2 since Complainant did not present any countervailing evidence that would provide a sufficient basis to find that the Registrar of Contractors inspector’s findings on the issues presented was incorrect. The only evidence offered in support of a claim that the remaining items complained of failed to meet minimum workmanship standards was the sole testimony of Complainant, who admittedly does not have any experience or expertise in construction matters. The claim for reimbursement for a March/April electric bill is not supported by the evidence. The issue relative to the door bell and the fact it has been replaced once already is one of concern. However, no evidence was presented to support Complainant’s allegation that the present door bell is likely to cause a fire; this allegation cannot be supported merely because the first door bell did so. Respondent is cautioned to be aware that this may be a potential problem and discretion may be the better part of valor. The issue concerning the alleged failure to deliver certain written material concerning the tile and carpeting, as well as a homeowners manual, were not established to be contractually required. CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) The Citation and Complaint alleges that Respondent violated A.R.S. §32-1154 A (7), (23) and (3), namely Rule R4-9-108. The Complainant has failed to sustain the burden of proof necessary to establish by a fair preponderance of the evidence that Respondent has violated any of the provisions of the foregoing cited statute. Respondent has timely responded to the CWO, including making corrections or repairs on a separate list in the exercise of goodwill, and all such work has been accepted as having been completed in a good and workmanlike manner. The items complained of by Complainant at the hearing were either specifically excluded from any corrective work orders as having been completed in accordance with acceptable minimum workmanship standards or industry standards. Complainant may truly believe that these remaining items are deficient and fail to meet minimum workmanship standards, however, in the absence of credible evidence to establish that such is the case then Complainant’s personal opinion testimony as the sole evidence on these points is insufficient. This is particularly so when a Registrar of Contractors inspector has previously found such items to be acceptable. Respondent has voluntarily agreed to forward to Complainant a new homeowners manual which includes warranties and instructions concerning the cleaning and care of the tile and carpet installed in Complainant’s home.

RECOMMENDED ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Citation and Complaint issued in Case No. M99-1442 be dismissed. ENTERED this day, February 8, 2000.

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Michael Goldwater, Director ATTN: Joyce Armijo 800 W. 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