ALJDEC decisions subject to certification as final

09F-4719-ROC · Registrar of Contractors · 2009-11-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 2009.

APPEARANCES: >The Complainant appeared through its credit manager, Lynne Welton. >The Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. The instant hearing was scheduled on advance written notice duly sent to both parties. Although the start of the scheduled hearing was delayed for over thirty minutes to afford added time in which to make an appearance, the Respondent failed to appear either through any authorized corporate employee or through any proper legal representative.

2. Complainant’s uncontroverted evidence demonstrated that, pursuant to contractual arrangements, Complainant agreed to and did furnish construction-related equipment to Respondent on a rental basis for use in Respondent’s contracting activities on identified commercial projects.

3. By way of an open account arrangement, periodic invoices were transmitted by Complainant to Respondent for the ongoing rental costs for the requested rental equipment utilized by Respondent, starting in August, 2008 and continuing through November, 2008. Each of those invoiced charges, shown to have been reasonable in amount, would become due and owing after thirty days.

4. When no payments had been received by Complainant from Respondent over a prolonged time period, and when no contacts or other responses by Respondent were made following numerous communicated requests and demands from Complainant either for monetary payments or for the working out of some periodic payment arrangements, Complainant filed its complaint with the Registrar of Contractors in early March, 2009, a date that was approximately six months after the first of the respective invoiced amounts had become long past due and payable.

5. At the time that the within complaint was filed, credible testimonial and documentary evidence tended to indicate that the total monetary sum remaining owing to Complainant from Respondent was $4,036.05. Respondent was further shown not to have paid any portion of the amount shown to be properly payable under the parties’ rental arrangements.

6. Complainant’s evidentiary presentation, as well as administrative notice taken of the Registrar’s license records, reveals that, Jonathan Eli Deaton, an individual who was a named person on Respondent’s license both at the time of the rental agreement

with Complainant and at the times of the ultimate failures to pay sums becoming due thereunder is the same individual that is listed on subsequently issued licenses to an LLC entity under the name of Patriot Air Conditioning and Plumbing, LLC. The listed business address of record for such subsequently licensed entity was and is identical to the business address of record for Respondent’s corporate entity that also holds several other licenses under the name of Freedom Air Conditioning Plumbing and Heating, Inc.

7. Notice is additionally taken of other license files of the Registrar which reveal that the within cited Class L-39 held by Respondent’s corporate entity has been suspended since June 23, 2009 for lack of a qualifying party[1] and that such license was further suspended on August 1, 2009 for non-renewal. Such license suspensions do not prevent Complainant from pursuing its administrative remedies nor do they preclude the Registrar from conducting these administrative disciplinary proceedings which are expressly authorized by statute.[2] Moreover, since little or no motivation would exist for any entity to comply with conditions in any Order to either undertake and complete remedial actions, whether of a construction or restitutionary nature, to avoid the imposition of a suspension of an already-suspended license, the Registrar must properly consider a provisional revocation when formulating reasonable conditions for possible inclusion in the Order to be entered in this case.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S.§32-1154(A)(7) and (11).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class L- license shall be revoked on the effective date of the Registrars’ Order entered in this matter.

It is further recommended that if written proof is filed with the Registrar that Respondent has paid or tendered the sum of $4,036.05 to Complainant on or before this Order’s effective date, then the above- provided license revocation shall not take place but instead Respondent’s Class L-39 license shall be placed on disciplinary probation for a period of 60 days. This alternative penalty shall commence, if at all, on the effective date of the Registrar’s Order entered in this matter.

It is further recommended, in the event that Respondent allows the provisional revocation penalty to be imposed by not timely complying with the above-provided payment condition, that the Registrar initiate an investigation into the propriety of commencing and pursuing disciplinary proceedings against other entities in which persons named on Respondent’s license are the same individuals as those named on the license or licenses of such other entities, as authorized and perhaps mandated pursuant to A.R.S.§32-1154(A)(21).

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 forty (40) days from the date of that certification. Dated: November 6, 2009. OFFICE OF ADMINISTRATIVE HEARINGS /s/ Robert I. Worth Administrative Law Judge

Electronically transmitted to: William A Mundell, Director Registrar of Contractors ----------------------- [1] Jonathan Eli Deaton had resigned as Respondent’s qualifying party on April 24, 2009 after the instant complaint had been filed by Complainant with the Registrar of Contractors. [2] See A.R.S.§32-1154(C).

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