ALJDEC decisions subject to certification as final

2008A-49941006-ROC · Registrar of Contractors · 2010-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 28, 2010 at 10:00 a.m. APPEARANCES: Complainant Gildardo Garcia appeared on his own behalf; Respondent Baztan Electric LLC did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On May 27, 2002, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC175202, Class K-11 for dual electrical contracting to Baztan Electric LLC, a limited liability company. Respondent’s current address of record with the Registrar is 4813 N. 35th Ave., Phoenix, AZ 85017-3011. On June 24, 2008, the Registrar received a complaint against Respondent’s license from Complainant Gildardo Garcia, which alleged that Respondent had contracted to perform certain electrical work at Complainant’s property at 1632 S. 22nd Ave. in Phoenix. Although Complainant had paid the full contract price, Respondent had failed to install two fixtures or to prepare site plans, for which plans Complainant had paid $6,000.00. The Registrar denominated Complainant’s complaint Case No. 08-4994. Pursuant to Complainant’s request, on February 19, 2009, the Registrar issued a Citation and Complaint against Respondent’s license in Case No. 08- 4994, charging A.R.S. § 32-1154(A)(1), (2), (7), and (11). Respondent submitted a written answer to the Registrar’s Citation and Complaint and the Registrar referred Case No. 08-4994 to the Office of Administrative Hearings (“OAH”), an independent agency, to schedule and to conduct a fair hearing. A hearing was held in OAH before Administrative Law Judge (“ALJ”) Eric A. Bryant in Case No. 08-4994 on May 26, 2009. Complainant and Respondent’s representative appeared for the hearing and agreed to settle Complainant’s complaint. ALJ Bryant summarized the terms of the parties’ settlement in the recommended decision to the Registrar as follows: To settle this matter, the parties made the following agreements: (1) Respondent agrees to install two light fixtures at Complainant’s property on May 27, 2009, and also agrees to pay Complainant $6,000.00 by the end of 90 days from today’s date; (2) Complainant agrees to close the ROC complaint.

On June 18, 2009, the Registrar accepted ALJ Bryant’s recommendation in Case No. 08-4994 and closed Complainant’s complaint against Respondent’s license pursuant to the parties’ settlement. On September 8, 2009, the Registrar received Complainant’s letter requesting that the complaint in Case No. 08-4994 against Respondent’s license be reopened because, although Respondent had installed the two light fixtures, it had not paid Complainant $6,000.00. On October 8, 2009, the Registrar received written correspondence from Respondent in Case No. 08-4994, which indicated that Respondent was attempting to negotiate a payment plan with Complainant to modify the terms of the settlement agreement. On March 18, 2010, the Registrar issued an order reopening the complaint in Case No. 08-4994 and ordering that a compliance hearing be scheduled in the Phoenix area in the expedited course of docketing. On March 18, 2010, according to the Registrar’s records, Respondent’s license was suspended for lack of bond. The license remained administratively suspended on the date of the hearing in this matter. On April 27, 2010, the Registrar issued a Notice of Compliance Hearing, setting a compliance hearing in Case No. 08-4994, which had been renumbered 2008-49941006, before the undersigned ALJ at the Phoenix office of OAH on May 28, 2010 at 10:00 a.m. The Registrar mailed a copy of the Notice of Compliance Hearing to Respondent at its address of record, 4813 N. 35th Ave., Phoenix, AZ 85017- 3011. A compliance hearing was held on May 28, 2010 at 10:00 a.m. Although the beginning of the duly noticed compliance hearing was delayed fifteen minutes to allow Respondent additional travel time, it did not appear through a duly authorized member, employee, or attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the start of the hearing be further delayed, and did not present any evidence to defend its license. Complainant appeared at the time scheduled for the hearing to begin and testified on his own behalf. Complainant testified that Respondent had installed the two light fixtures and had paid Complainant $1,000.00. Complainant testified that Respondent had proposed a payment schedule but he had declined to agree to accept payments. Complainant testified that Respondent had made no further payments on the $6,000.00 that it agreed to pay and, as of the date of the hearing, still owed $5,000.00. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notice of Compliance Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the compliance hearing.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] The administratively suspended status of Respondent’s license does not preclude Complainant from pursuing his administrative remedy nor preclude the Registrar from conducting these disciplinary proceedings.[6] If Respondent fails to comply with any condition that the Registrar sees fit to include in its final Decision and Order in this matter, Respondent’s suspended license will be revoked. If the Registrar accepts this recommendation and, as a result of Respondent’s failure to comply with the Registrar’s final decision in this matter, the Registrar revokes Respondent’s license, in due course the revocation will lead to revocation of any other license on which Respondent or the other persons listed on its license may be also listed[7] and may prevent any new license from being issued.[8] Complainant has established that Respondent violated A.R.S. § 32- 1154(A)(11)[9] by failing to pay Complainant $5,000.00.

RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar revoke Respondent Baztan Electric LLC’s License No. K-11.175202-D unless Respondent provides written proof that it has paid Complainant Gildardo Garcia $5,000.00. It is further recommended that if, on or before the effective date of the final order, the Registrar receives written proof from Respondent that it has paid Complainant $5,000.00 by certified or cashier’s check, the Registrar should not revoke Respondent’s license but, instead, should close Case No. 2008-49941006 (formerly 08-4994). If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, May 28, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See A.R.S. § 32-1154(C). [7] See A.R.S. § 32-1154(A)(21). [8] See A.R.S. § 32-1122(E). [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .”

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

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