ALJDEC decisions subject to certification as final

08F-G0527-ROC-com · Registrar of Contractors · 2009-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 14, 2009 APPEARANCES: Audrey Monell and Don Hensley appeared on behalf of Complainant Forrest Anderson Plumbing and Air Conditioning, Inc. Respondent Jimmy Daniel Hammack, doing business as Hacienda Mechanical Services, failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ 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. The hearing in this matter convened on September 14, 2009 at 1:30 p.m., pursuant to a Notice of Compliance Hearing issued by the Registrar of Contractors (“ROC”), to determine whether or not Respondent Jimmy Daniel Hammack, doing business as Hacienda Mechanical Services (“Hacienda”), “has fully complied with the terms of the parties’ Settlement Agreement, absent unreasonable interference or denial of access by Complainant [Forrest Anderson Plumbing and Air Conditioning, Inc. (“Forrest”)].” On the date and at the time scheduled for the hearing, Audrey Monell and Don Hensley appeared on behalf of Forrest. Hacienda failed to appear or be represented. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Hacienda, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Hacienda’s absence. 2. The initial hearing of this matter convened on September 29, 2008. Mr. Hensley appeared on behalf of Forrest. Jimmy Hammack appeared on behalf of Hacienda. 3. Prior to the commencement of the September 29, 2008 hearing, and outside the presence of the Administrative Law Judge, the parties concluded a settlement agreement, the terms of which were read upon the record. 4. The terms of the parties’ settlement agreement were set forth in an Order Vacating Hearing Due To Settlement as follows: a. Respondent will pay to Complainant the sum of $500.00 per month commencing on October 25, 2008, until the outstanding balance of $6,623.17 is paid in full; Respondent will continue to make payments on the 25th day of each month thereafter until paid in full; b. Complainant waives any and all interest that has accrued on the outstanding balance; and c. Upon payment in full, Complainant will release to Respondent the scissor lift, and Respondent will procure it from Complainant’s place of business.

5. At hearing, Ms. Monell credibly testified that Hacienda made its first payment of $500.00 to Forrest on October 27, 2008. However, Hacienda had failed to make any additional payments pursuant to the terms of the parties’ agreement. Hacienda continues to owe Forrest the sum of $6,123.17. Ms. Monell further credibly testified that Hacienda has made no attempt to contact Forrest since the receipt of the October 27, 2008 payment. 6. The Administrative Law Judge finds, based on the weight of the credible evidence presented at hearing, that Hacienda has failed to comply with the terms of the parties’ settlement agreement. CONCLUSIONS OF LAW 1. Forrest has sustained its burden of proving that Hacienda failed to fully comply with the terms of the parties’ settlement agreement. See Arizona Administrative Code Rule R2-19-119. 2. In view of Hacienda’s failure to comply with the terms of the parties’ settlement agreement and in accordance with the July 21, 2009 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against Hacienda’s Class C-39R license.[1] RECOMMENDED ORDER In view of the foregoing, it is recommended that Hacienda’s Class C-39R license (no. 111746) shall be immediately revoked. 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 day, September 16, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of September, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Hacienda’s contracting license was suspended on February 2, 2008, for lack of bond, its license expired on March 1, 2009, and its license was suspended on February 23, 2009, in Case No. 08-1682, and subsequently revoked on March 18, 2009, in Case No. 08-1682 for failure to pay a civil penalty. Such suspended, expired, and revoked license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32- 1154(C).

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