ALJDEC decisions subject to certification as final

03F-1820-ROC · Registrar of Contractors · 2003-10-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2003

APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, Roger Cohen. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant filed the instant complaint alleging that Respondent is improperly advertising. The facts surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant and her husband are the original owners of Respondent. In 1995 they sold the business to their daughter and son-in- law, Scott Wetter (“Scott”). Scott was the president and qualifying party for Respondent after the business was sold to him and his wife (Complainant’s daughter). b. As part of the sale, Complainant and her husband agreed to a non- compete clause for five (5) years. c. Sometime in either 2000 or 2001 the marriage between Scott and Complainant’s daughter ended in divorce. d. Sometime during the divorce proceeding between Scott and Complainant’s daughter, Complainant and her husband called in a “balloon” payment on the sale of the business. Scott did not have the money to cover said payment and therefore, had his sister, Susan Wetter (“Susan”) loan Respondent the money and pay the money directly to Complainant. e. In exchange for the payment made by Susan, Respondent executed a promissory note to Susan. When Respondent defaulted on the promissory note, Susan took over all of the assets of the company in 2002 and formed her own heating and air conditioning business, under the name of SMW Refrigeration & Heating, LLC, in March 2002 f. In January 2002, Scott conveyed his rights in the trade name of Respondent to Susan and Susan had said trade name officially registered in her name as of March 2002. In addition, Scott also gave Susan the right to use his phone listing account for Respondent. g. As aforementioned, Susan elected to use her own company name to run her heating/air conditioning business. She testified at the instant hearing that she contacted the phone company in 2002 to change Respondent’s phone number listing to be listed as SMW Refrigeration & Heating, LLC. Due to an oversight by Qwest, the name was never changed in the phone books. Thus, the explanation for why the name of Respondent still shows in the yellow pages and the Qwestdex Internet listing, despite the fact that Respondent has been out of business since 2002. h. Susan testified that she has finally gotten assurance from Qwest that the next printing of the telephone books will accurately reflect SMW Refrigeration & Heating, LLC under the old phone number for Respondent.

3. Although Complainant also indicated at the hearing that she had received some information about Respondent failing to pay certain taxes, the evidence presented was inadequate to establish any violation of the charged sections of the State’s Contracting laws.

4. The facts described above fail to demonstrate any wrongdoing whatsoever by the named Respondent, which has not had a qualifying party since May 2002 and has not been doing business since 2002. If anyone, at all, is responsible for the continuing listing of Respondent in the telephone book, it is Qwest which failed to correct the listing after Susan contacted them to make the change in 2002. Complainant failed to sustain the requisite burden of proof on the issues set forth in the filed complaint.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. 03-1820), together with the Complaint upon which it is based, be dismissed.

Done this day, October 7, 2003

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2003, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 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