ALJDEC decisions subject to certification as final

2011A-5854-ROC · Registrar of Contractors · 2012-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7, 2012, at 8:00 a.m. The record was held open until September 12, 2012, to allow Northern Arizona Home Entertainment Inc. dba Prescott Home Entertainment sufficient time to provide proof of an alleged corporate bankruptcy filing. No proof of a bankruptcy filing by Northern Arizona Home Entertainment Inc. dba Prescott Home Entertainment was provided. APPEARANCES: Thumy Vanta (hereinafter “Complainant”) appeared on her own behalf. Northern Arizona Home Entertainment Inc. dba Prescott Home Entertainment (hereinafter “Prescott Home”) appeared through its authorized representative, Shaun Kerry Smith. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders on Compliance Hearing are made: FINDINGS OF FACT 1. Prescott Home is the holder of License No. K-67.242352-D issued by the Registrar of Contractors. 2. Prescott Home is the holder of License No. C37R.243802-R issued by the Registrar of Contractors. 3. The Order Setting Compliance Hearing provided, in pertinent part, as follows: On December 16, 2011, the Registrar issued Default Decisions and Orders in these matters providing that Respondents’ K-67.242352-D and C37R.243802-R Licenses would be revoked on the effective date of the Orders unless Respondents accomplished the corrective work involved and detailed in the Complaint and the Agency’s written directive on or before the effective date of the Orders. If Respondents submitted written proof to the Registrar of their compliance with the terms of the Orders, prior to the effective date of the Orders, and the Registrar accepts such written proof, then Respondents’ K-67.242352-D and C37R.243802-R Licenses would not be revoked, but instead, each placed on disciplinary probation for ninety (90) days. The Orders further required that Respondent[´s] License No. K-67.242352-D pay a $500.00 civil penalty to the Registrar on or before the expiration of thirty (30) days after the effective date of the Orders or risk the automatic revocation of its K-67.242352-D License. The effective date of the Orders was January 25, 2012.

On or about February 29, 2012, Respondents submitted written correspondence in these matters with the Registrar maintaining, among other things, that Respondents “had been told by our ROC [I]nspector that if [Respondents] did the work order the case would be closed – which [Respondents] did. Now [Respondents] have been notified that the case [Respondents] had been told was closed was now reopened, but it is already past the compliance date.” Respondents further provided that Complainant refuses to return Respondents’ telephone calls. Respondents requested that the Registrar schedule a Compliance Hearing in these matters “because of the fact that what was asked of [Respondents] has already been done for a long time . . . .” The Registrar treated the submission as a Request for a Compliance Hearing.

On March 21, 2012, the Registrar sent a copy of Respondents’ Request for a Compliance Hearing to Complainant, providing Complainant an opportunity to file a Response thereto.

On or about March 29, 2012, Complainant submitted written correspondence in these matters providing, among other things, that Respondents “ha[ve] not completed the work to [Complainant’s] house even with numerous chances to comply and complete the project.”

In view of the foregoing, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course [of] docketing in the Flagstaff area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Complainant has denied Respondent access to comply with the Registrar’s directives or whether or not Respondents have failed to comply with the Registrar’s Orders, absent unreasonable interference by Complainant.

If it is determined that Respondents failed to comply with the terms of the December 16, 2011 Default Decisions and Orders, absent unreasonable interference by Complainant, Respondents’ K- 67.242352-D and C37R.243802-R Licenses shall be subject to immediate revocations.

If it is determined that Complainant unreasonably interfered with Respondents’ attempts at compliance or denied Respondents the ability to comply with the terms of the Default Decision and Orders, then no discipline shall be imposed upon Respondents’ Licenses and these matters shall be closed.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar[’s] Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

Respondent[’s] License No. K-67.242352-D is reminded that it must pay the outstanding $500.00 civil penalty assessed by the Registrar in its December 16, 2011 Default Decision Order issued in Case No. 2011-2900. If the Registrar does not receive such payment within ten (10) days from the date of this Order, the Registrar shall revoke Respondent’s License No. K-67.242352-D in accordance with the terms of the December 16, 2011 Default [Decision and Order].

A Notice of Compliance Hearing shall be issued in due course.

Note: Respondents’ License No. K-67.242352-D was suspended for non-renewal on March 1, 2012, and again suspended for lack of bond on July 6, 2012. As a result of these administrative suspensions, License No. K-67.242352-D is precluded from engaging in any contracting at this time.

Respondents’ License No. C37R.243802-R was suspended for non- renewal on April 1, 2012, and was again suspended for lack of bond on April 9, 2012. As a result of these administrative suspensions, License No. C37R.243802-R is precluded from engaging in any contracting at this time.

4. The assigned Agency Inspector, Clifford A. Frandsen (hereinafter “Inspector Frandsen”), testified that he performed the original onsite inspection on June 1, 2011, and issued a Corrective Work Order directing Prescott Home to perform designated corrective action on Complainant’s residence. Inspector Frandsen performed a pre-hearing inspection on September 5 or September 6, 2012. Inspector Frandsen stated that there was no part of any system that was totally completed. Inspector Frandsen testified that he observed that there was no pre-wiring for the speakers, the security system was not complete, the entertainment system was not wired correctly, the entertainment system was not fully functional, and the central vacuum system was not compatible with the pre-wiring installed by Prescott Home. Inspector Frandsen opined that Prescott Home had failed to fully comply with the terms of the Corrective Work Order and the December 16, 2011 Default Decision and Order of the Registrar of Contractors.[1] 5. Inspector Frandsen testified that he issued the Corrective Work Order because none of Complainant’s electronic systems were functional in June 2011, and that the electronic systems are still not functional as of September 7, 2012. Inspector Frandsen stated that during the pre- hearing inspection, Complainant could not get her electronic systems to operate because Respondent had failed to provide all of the parts for the electronic systems and the pre-wiring had not been properly installed and was not compatible with Complainant’s electronic systems.[2] 6. Donald David Homsey (hereinafter “Mr. Homsey”) testified that he is a long-time friend of Complainant. Mr. Homsey stated that he was present during much of the work performed by Prescott Home. Mr. Homsey stated that Complainant’s electronic systems were still not complete and were still not functional. Mr. Homsey testified that Prescott Home failed to provide many of the electronic components specified in the parties’ construction agreement and that Prescott Home substantiated brands of electronic components without authorization.[3] 7. Complainant testified that she did not authorize any changes to the electronic systems that were supposed to be installed by Prescott Home in her residence. Complainant stated that the installation of the agreed- upon electronic components was still not complete. Complainant denied that there had been a denial of access and testified that she repeatedly provided Prescott Home with access to her residence to complete the installation of the electronic components.[4] 8. Complainant’s testimony is found to be credible. 9. Shaun Kerry Smith (hereinafter “Mr. Smith”) testified that, initially, Complainant wanted an upgrade in her electronic receiver and that accordingly the original electronic receiver was removed from her home. Complainant then changed her mind and Prescott Home returned the original receiver in an open box. Mr. Smith stated that the open box did not change the warranty for the electronic receiver.[5] 10. Mr. Smith testified that Prescott Home had “gone above and beyond” for Complainant’s construction project and performed many items of construction work that were not on Complainant’s contract. Mr. Smith stated that Complainant received all of the electronic components that she contracted for. Mr. Smith stated that Complainant left Prescott Home “very much in the dark” as to what she wanted Prescott Home to do.[6] 11. Mr. Smith testified that there was no labor listed on Prescott Home’s contract with Complainant and that all Prescott Home was obligated to do was provide the agreed-upon electronic components to Complainant’s residence. Mr. Smith stated that Prescott Home delivered all of the electronic components specified in the parties’ contract.[7] 12. Administrative notice is taken of Respondent’s prior license records as reflected on the Registrar of Contractors’ public website on September 25, 2012. Such prior license records reflect that of License No. K- 67.242352-D of Prescott Home was revoked on August 8, 2012, and that License No. C37R.243802-R of Prescott Home was suspended for non-renewal on April 6, 2012, and suspended for lack of bond on April 7, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The security system in Complainant’s residence is not complete and is not fully functional, the entertainment system in Complainant’s residence is not wired properly and is not fully functional, and the central vacuum system is not compatible with the pre-wiring installed by Prescott Home and is not functional. There was no credible evidence or any unreasonable interference or denial of access by Complainant. This Tribunal concludes that Prescott Home has failed to fully comply with the terms of the December 16, 2011 Default Decision and Orders issued by the Registrar of Contractors.

RECOMMENDed orders

Docket No. 2011A-2900-ROC

In view of the foregoing, it is recommended that License No. K- 67.242352-D of Prescott Home shall be immediately revoked.

Docket No. 2011A-5854-ROC

In view of the foregoing, it is recommended that License No. C37R.243802-R of Prescott Home shall be immediately revoked. . In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, September 25, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 9/7/12 Hearing Record (hereinafter “H.R.”) at 14:07-16:43. [2] H.R. at 20:45-23:44. [3] H.R. at 25:02-28:31. [4] H.R. at 29:35-32:40. [5] H.R. at 33:14-33:45. [6] H.R. at 33:46-35:09. [7] H.R. at 35:10-36:21.

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

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