ALJDEC decisions subject to certification as final

2009A-53383488-ROC · Registrar of Contractors · 2011-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: August 5, 2011, at 1:00 p.m. APPEARANCES: Complainant Carlos Fernandez appeared on his own behalf; Respondent A 1 Speedy Service, Inc. dba Valley Heating and Cooling did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In January 1989, the Arizona Registrar of Contractors (“the Registrar” or “ROC”) issued License No. ROC081733, Class C39R for residential air conditioning and refrigeration excluding solar to A 1 Speedy Service, Inc. doing business as (“dba”) Valley Heating and Cooling (“Respondent”). Respondent’s address of record is 894 E. Warner Road, Suite 103, Gilbert, Arizona 85296-2935. On or about April 10, 2009, the Registrar received a complaint from Carlos Fernandez (“Complainant”) that Respondent installed independent air conditioning on both sides of his house at 3774 South Coach House Drive in Gilbert, Arizona after it was converted to a duplex, and that the air conditioning system did not adequately cool the master suite area on one side of the duplex. The Registrar designated Complainant’s complaint as Case No. 09-5338. The Registrar’s inspector, Randy Cason, performed a jobsite inspection in Case No. 09-5338. On June 16, 2009, Inspector Cason issued a Corrective Work Order (“CWO”) to Respondent, requiring it within fifteen calendar days to correct by appropriate means the insufficient air flow and cooling capacity of the air conditioning system in the master suite. Complainant requested a hearing. On September 11, 2009, the Registrar issued a Citation and Complaint in Case No. 09-5338, charging Respondent with violating A.R.S. § 32-1154(A) (23),[1] former (7),[2] and (3), namely A.A.C. R4-9-108.[3] Respondent did not file a timely written answer to the Citation and Complaint. Therefore, on December 10, 2009, the Registrar issued a Decision and Order in Case No. 09-5338, finding that by failing to file a timely written answer, under A.R.S. § 32-1155(B), Respondent admitted the charges contained in the Citation and Complaint. As a result of Respondent’s admitted violations, the Registrar required Respondent to pay a $250.00 civil penalty and to submit “proof that Respondent properly corrected the items involved and detailed in the Complaint and the Agency’s [CWO].” The Registrar’s Decision and Order had an effective date of January 19, 2010. The parties subsequently submitted conflicting claims to the Registrar in Case No. 09-5338. The Registrar redesignated Case No. 09-5338 as Case No. 2009-53383488. On May 27, 2011, the Registrar issued an Order Denying Request for Rehearing/Order Setting Compliance Hearing in Case No. 2009- 53383488, providing in relevant part as follows: On or about December 14, 2009, Respondent submitted written correspondence with the Registrar maintaining, among other things, that “the original [C]itation was not delivered to Valley Heating & Cooling.” Respondent further requested that this case be “closed due to a denial of access to the respondent’s [sic] residence to perform the required corrective work . . .. By not notifying [Respondent] of any further concerns, [Complainant] has in fact denied the opportunity to correct any workmanship errors.” The Registrar treated this submission as a timely Request for Rehearing.

On or about January 5, 2010, Complainant submitted written correspondence with the Registrar maintaining, among other things, that “the [C]omplaint was sent [by] certified mail to the correct address. Additionally, the tracking information for this certified mail number indicates that delivery was attempted, and notices were left, but the notices were ignored.” Complainant further maintains that Complainant “repeatedly called to schedule appointments to get the work completed, and each time an appointment was made, no one would show up . . .. Eventually, I was not able to reach [Mr. Calloway] by phone at all, but could only talk to his assistant, Judy . . .. Judy replied ‘Curtis is a business owner and is well aware of how the ROC’s process works’.” The Registrar treated this submission as a Response to the request for Rehearing.

In view of the foregoing, after a review of the Request and Response, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Rehearing be DENIED for the reason that there is no sufficient showing of any legal or factual basis for the granting of any rehearing and for the further reason that the findings, conclusions and recommendations contained in the December 10, 2009 Default Decision and Order are fully supported by the record. . . . .

IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has fully complied with the terms set forth in the Registrar’s December 10, 2009 Default Decision and Order, absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent has failed to fully comply with the terms of the December 10th Order, absent unreasonable interference or denial of access by Complainant, then Respondent’s Class C-39R License No. 081733 shall be subject to the immediate imposition of discipline. If it is determined that Complainant unreasonably interfered or denied access to Respondent or its representatives, then Case No. 09-5338 shall be closed without the imposition of discipline, and Complainant shall not be granted access to the Residential Contractors’ Recovery Fund, even if otherwise found to be eligible.

IT IS FURTHER ORDERED that Respondent pay the $250.00 Civil Penalty to the Registrar on or before thirty (30) days after the date of this Order or risk the revocation of its Class C-39R License No. 081733.

(Emphasis in original.) The Registrar referred Case No. 2009-53383488 to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing on the issue of whether Respondent complied with the Registrar’s Decision and Order in former Case No. 09-5338. On June 16, 2011, the Registrar issued a Notice of Compliance Hearing in Case No. 2009-53383488, setting a compliance hearing on August 5, 2011, at 1:00 p.m. at the OAH. The Registrar sent a copy of the Notice of Compliance Hearing to Respondent at its address of record. On August 5, 2011, a compliance hearing was held in Case No. 2009-53383488. Inspector Cason testified. Complainant testified on his own behalf. Respondent did not request to appear telephonically at the compliance hearing and did not request that the hearing be continued. Although the start of the duly noticed compliance hearing was delayed fifteen minutes to allow Respondent additional travel time, it did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to establish that it complied with the Registrar’s final Decision and Order in former Case No. 09-5338. Inspector Cason testified that he conducted a prehearing jobsite inspection on August 4, 2011, at 3:00 p.m. Inspector Cason testified that he asked Complainant to turn the thermostat down to 72°. Inspector Cason testified that the air flow from the registers in the master suite had increased to comply with standards. Inspector Cason testified that the outside air temperature was 104° at the time of the prehearing inspection, and that the Registrar’s standard requires the air conditioner to cool the interior of the duplex to a minimum temperature of 78°. At 3:47 p.m., Inspector Cason checked the temperature in various locations in the duplex, and found it to be 76° to 76.5°. Inspector Cason testified that the temperature in the master suite was 80.4°, 2.4° over the minimum. Complainant testified that Respondent made only two appointments to perform work after the CWO was issued in former Case No. 09-5338, and failed to appear for both appointments. Complainant testified that Respondent did not contact him after July 9, 2009, to address his complaint. The record in this matter does not indicate whether Respondent paid the $250.00 civil penalty that the Registrar imposed in the December 10, 2009 final Decision and Order in former Case No. 09-5338 and affirmed in the May 27, 2011 Order Denying Request for Rehearing/Order Setting Compliance Hearing in Case No. 2009-53383488. According to the Registrar’s electronic record, Respondent’s license was current and in good standing on the date of the compliance hearing. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[4] The Notice of Compliance Hearing that the Registrar sent to Respondent at its address of record was reasonable, and Respondent is deemed to have received notice of the compliance hearing.[5] Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s final Decision and Order in former Case No. 09-5338 or that Complainant failed to provide reasonable access for it to do so.[6] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] Respondent failed to appear at the compliance hearing and did not present any evidence to establish that it complied with the Registrar’s final Decision and Order in former Case No. 09-5338, the CWO, or the Registrar’s Order Denying Request for Rehearing/Order Setting Compliance Hearing in Case No. 2009-53383488. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend Respondent A 1 Speedy Service, Inc. dba Valley Heating and Cooling’s License No. ROC081733 until it has presented written proof that is satisfactory to the Registrar that it has complied with the Registrar’s December 10, 2009 final Decision and Order in former Case No. 09-5338. 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 five days from the date of that certification. Done this day, August 22, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [2] A.R.S. § 32-1154(A)(7) formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [3] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [4] See 32-1101 et seq. [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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