ALJDEC

00F-C990224-BFS · Department of Building and Fire Safety · 2000-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2000

APPEARANCES: Assistant Attorney General Marc Harris appeared on behalf of the State of Arizona, Department of Building and Fire Safety ; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

The Office of Administration, Arizona Department of Building And Fire Safety (hereinafter “OA”) brings this action against Respondent Del Sol Services. As noted above, neither Respondent’s owner and Qualifying Party Omar Celaya nor anyone else on behalf of Respondent appeared at the hearing; therefore, the OA’s evidence is uncontested. Having considered the OA’s evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of revocation. FINDINGS OF FACT Notice of Hearing 1. Omar Celaya is the Qualifying Party for License 7102, held by Respondent Del Sol Services. Since Celaya did not appear at the hearing, this Administrative Law Judge inquired into the mailing of notice to Respondent. The record shows that the Notice of Hearing identifying the date, time, and place for the hearing was mailed by certified mail to Respondent on April 28, 2000. Celaya signed for the certified mail on May 9, 2000. (Exhibit 7.) Therefore, he clearly received the Notice of Hearing. The Complaint 2. Lon Clifton is an Inspector for the Office of Manufactured Housing, Arizona Department of Building and Fire Safety. On November 22, 1999, he conducted his second inspection of a gas inlet at a manufactured home in Dewey, Arizona. The inlet was constructed by Respondent as part of the set up for the home. Clifton found, for the second time, that the inlet was improperly installed and that, while not immanently dangerous, the inlet was potentially dangerous to the home. (Exhibit 1.) 3. On December 10, 1999, the OA issued a Citation and Complaint alleging that Respondent had improperly installed the inlet. (Exhibit 2.) 4. Respondent answered the Citation and Complaint by letter from Celaya dated December 28, 1999. (Exhibit 3.) Celaya stated that the violation had been corrected and asked for dismissal of the complaint. 5. On January 14, 2000, Clifton again inspected the inlet and found it unchanged. (Exhibit 4.) The OA offered Respondent a consent agreement asking Respondent to admit the allegations and agree to correct the violation within 30 days, pay a $150 civil penalty, and be placed on probation for six months. (Exhibit 5.) On February 15, 2000, Celaya signed the agreement and the penalties were imposed. (Id.) Celaya paid the civil penalty on February 16, 2000. 6. On March 20, 2000, Clifton found that Respondent still had not corrected the violation. (Exhibit 6.) Furthermore, on inspection the week of June 5-9, 2000, Clifton found that the inlet remained uncorrected. Clifton testified that the correction is not complicated and should take no more than one hour to perform. CONCLUSIONS OF LAW Notice of the Hearing 1. Respondent received notice of the hearing in this matter. Therefore, the failure to appear is deemed a waiver of Respondent’s right to appear and defend against the allegations. Violation 2. The Notice of Hearing issued by the OA on April 24, 2000, does not cite any statute that Respondent is alleged to have violated, nor was one cited at the hearing. The Notice is legally inadequate and should result in dismissal of this case. However, because Respondent did not appear, he has waived his rights and this tribunal will proceed. 3. Based on the presentation at the hearing, one would think that the OA is alleging that Respondent has violated the statutes by failing to comply with the Stipulation and Order Respondent consented to on February 15, 2000. Failure to comply with an agency order, however, is not listed as an explicit statutory ground for discipline in A.R.S. § 41-2186. Moreover, the OA cannot re-allege Respondent’s failure to install the inlet correctly because that issue has been finally adjudicated by the consent agreement Stipulation and Order. 4. After perusing that statute in light of the facts as found above, the evidence shows that Respondent has violated A.R.S. § 41-2186(6), doing a wrongful act that relates to the OA statutes, by failing to comply with the consent agreement. 5. It should be noted that the OA could have saved itself the trouble of the hearing by providing in the consent agreement that, if Respondent did not correct the violation within 30 days, his license would be suspended or revoked. 6. This tribunal concludes that revocation is appropriate in this case. Respondent has had more than six months to correct an important but easily fixed problem. Its failure to do so is grossly inadequate conduct.

. . .

RECOMMENDED ORDER Based on the findings and conclusions above, IT IS RECOMMENDED that Class I-10C license 7102, held by Del Sol Services, be revoked.

Done this 10th day of July 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of July 2000, to:

N. Eric Borg, Director ATTN: Michelle M. Castaneda Arizona Department of Building and Fire Safety East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

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

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