ALJDEC decisions subject to certification as final

08F-5022-ROC-com · Registrar of Contractors · 2010-05-17

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 2010

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant requested a compliance hearing to show that Respondent is not in compliance with an Order of Closing issued by the Registrar of Contractors that adopted a settlement agreement between the parties. That Order required Respondent to comply with the terms of the settlement agreement. Complainant claims that Respondent has not done so. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On July 9, 2009, the Registrar of Contractors (“ROC”) issued an Order Of Closing in case 08-5022 adopting an Administrative Law Judge Order Vacating Hearing Due to Settlement, accepting the terms of the settlement agreement described in the ALJ Order, and noting that the case was subject to being re-opened upon an allegation of failure to comply with the settlement terms. According to the settlement terms, Respondent was to pay for repairs to electrical and HVAC repairs after Complainant obtained three bids for each type of repair. On July 28, 2009, Complainant requested a compliance hearing. On January 12, 2010, the ROC set the matter for compliance hearing. Introduction Notice of the compliance hearing presents the issue of whether or not Respondent has complied with the terms of the settlement agreement. This tribunal entered the complaint file received from the Registrar of Contractors into the record, which contain the estimates obtained by Complainant. Complainant presented evidence and uncontested testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending that Respondent’s licensed be provisionally revoked. FINDINGS OF FACT 1. Respondent is the holder of a class C-39R limited specialty residential contracting license (No. 168097) issued by the Registrar of Contractors (“ROC”). That license is limited by the ROC, and authorizes Respondent to perform installation and repair of comfort air conditioning systems, including refrigeration, evaporative cooling, ventilating, and heating. The license was voluntarily cancelled in March 2008. 2. The parties entered into a settlement agreement on June 10, 2009. In the agreement, Complainant agreed to get three estimates each for repairs to electrical work and repairs to his HVAC system. The agreement provided that Respondent would pay Complainant up to $1,000 for the electrical and up to $3,000 for the HVAC work, unless all the bids exceeded those amounts, at which point Respondent would be allowed to review them for scope of work. 3. Complainant promptly obtained bids from three licensed contractors. The bids included both the electrical and HVAC repairs. Respondent objected, stating that six bids were necessary. Complainant asked for a hearing. 4. At hearing, Complainant presented the three bids and testified that they include both the electrical and HVAC. This tribunal finds that Complainant has complied with the terms of the agreement. 5. A review of the bids shows that they include the work described in the settlement agreement. All bids show removal and replacement of HVAC components and Complainant testified that this is necessary for the HVAC to work properly. 6. Respondent did not show for the hearing. Therefore, Complainant’s testimony is uncontested. This tribunal finds Complainant’s testimony to be credible. 7. The lowest bid totals $12,979.58. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Since Complainant sought the compliance hearing, Complainant bears the burden of showing, by a preponderance of evidence, that Respondent has failed to comply with the terms of the settlement.[3] Complainant has met that burden. 2. As the evidence shows, Complainant has kept his part of the settlement terms and Respondent has not. The evidence shows that Complainant is entitled to an award of $12,979.58 to have the electrical and HVAC repairs done by a properly licensed contractor. 3. As noted, Respondent’s C-39R license was cancelled. Pursuant to A.R.S. § 32-1154(C), cancellation of the license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license in this matter. 7. The appropriate sanction in this matter is revocation of the license, unless Respondent pays Complainant for the repair costs, which is found to be $12,979.58. RECOMMENDED ORDER IT IS RECOMMENDED that Class C-39R license 168097, held by Respondent Ace Industries, Inc. be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of payment to Complainant of $12,979.58, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 08-5022 shall be closed again.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this 17th day of May 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Arizona Administrative Code (A.A.C.) R2-19-119(B). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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