ALJDEC decisions subject to certification as final

2009A-51364667-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Michael Thal, accompanied by Keith McCallum, Respondent’s Managing Member and Qualifying Party.

WITNESSES: Ted Gerold, ROC Inspector Jerry Willwater Keith McCulloch Tim Chatburn, President of Arizona Ace

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set to determine whether Respondent is in compliance with a Default Decision and Order issued by the Registrar of Contractors. That Default Decision and Order required Respondent to satisfy the complaint filed by Complainant that resulted in a Corrective Work Order (“CWO”) ordering Respondent to address 5 of 7 items listed in the CWO. At the compliance hearing, Complainant identified item 7 on the CWO, which required Respondent to provide warranty paperwork for two evaporative coolers, as the item that has not been completed. Respondent’s position is that it is in compliance and that there was no meaningful action to take on that item because the manufacturer went out of business and the contract between the parties clearly provides a warranty from Respondent for the appliances sold to Complainant. Procedural Background On August 17, 2010, the Registrar of Contractors (“ROC”) issued a Default Decision and Order that gave Respondent 40 days to satisfy the complaint and the CWO in this matter or have its license suspended. After a request for rehearing was denied, Respondent contacted the ROC claiming that it was in compliance with the Default Order. Complainant disputed that claim and noted that the only remaining item was the warranty paperwork issue for the evaporative coolers. In September 2011, the ROC issued an order setting this case for a compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that the parties are to present evidence as to “whether or not Respondent has complied with the terms and conditions of the [Default Order].” This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Default Order. Exhibit A was offered by Respondent and admitted into evidence as well. The parties presented testimony and evidence at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent is in compliance and recommending closure of the complaint. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.216788-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction. Keith McCulloch is the Qualifying Party. 2. Complainant testified that the essence of his complaint at this point is that he was not given warranty papers for the evaporative coolers when the project was completed.[1] He is concerned about the warranty on the evaporative coolers because he never received the manufacturer’s warranty paperwork for the coolers. 3. The evidence is clear that Respondent in the contract between the parties gave Complainant a 2-year warranty of the evaporative coolers, regardless of whether Complainant has any paperwork from the manufacturer. The evidence also shows that the manufacturer of the evaporative coolers is out of business. According to the contract between the parties, however, Respondent gave the same warranty to Complainant that the manufacturer would have given. Therefore, Complainant has not had any exposure to a lack of warranty for the evaporative coolers. 4. The evidence shows that Respondent has substantially complied with the Default Order. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Since the Default Order required Respondent to show compliance and since Respondent has asserted that it should be deemed to be in compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the ROC Default Order.[4] Respondent has met that burden. 2. As noted, the evidence shows substantial compliance with the Default Order. RECOMMENDED ORDER IT IS RECOMMENDED that case 2009-51364667 (formerly 09-5136) be closed because Respondent is in compliance with the Default Order.

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, December 22, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Technically, this issue was concluded in Complainant’s favor by the Default Order. [2] Arizona Administrative Code (A.A.C.) R2-19-119(B). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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