ALJDEC decisions subject to certification as final

2010A-24617854-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Jonathan Miller

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, which requested restitution. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On October 13, 2010, the Registrar of Contractors (“ROC”) issued a Default Decision and Order that gave Respondent 40 days to satisfy the complaint in this matter or have its license revoked. On November 16, 2010, Respondent contacted the ROC claiming that it was in compliance with the Default Order. Complainant disputed that claim. In August 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 fully complied with the terms and conditions of the Registrar’s October 13, 2010 Default Decision and Order. If it is determined that Respondent has failed to fully comply with the terms of the Registrar’s October 13th Default Decision and Order issued in this matter, Respondent’s K- 39.206601-D License shall be subject to the immediate imposition of discipline. If it is determined that Respondent has fully complied with the terms of the Registrar’s October 13th Default Decision and Order, then this matter shall be closed absent the imposition of discipline.

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. Complainant presented brief testimony 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 the evidence does not show Respondent to be in compliance with the Default Order. FINDINGS OF FACT 1. Respondent was the holder of license K-39.206601-D, a dual specialty contracting license issued by the ROC. It authorized Respondent to install and repair air conditioning and heating systems (excluding solar) for both residential and commercial properties. The Qualifying Party for the license was Jason Stanley. The license was revoked for failure to pay a civil penalty in July 2011. 2. The original complaint filed by Complainant in this matter requested restitution in the amount of $300.00. Complainant testified that this amount was never offered to him. Respondent offered him a much smaller amount, but Complainant rejected it. 3. Complainant’s evidence is uncontested. 4. The evidence does not show that Respondent is in compliance 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.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] 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.[3] Respondent has failed to meet that burden. 2. As noted, the evidence does not show compliance with the Default Order. RECOMMENDED ORDER IT IS RECOMMENDED that license K-39.206601-D, held by Stanley Home Services, LLC, be revoked for failure to comply 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] Arizona Administrative Code (A.A.C.) R2-19-119(B). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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