ALJDEC decisions subject to certification as final

2012A-1702-ROC · Registrar of Contractors · 2012-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 30, 2012 APPEARANCES: Roth Production Company, L.L.C. was represented by its authorized representative, R.C. Romero Jr. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT 1. Ond Contractor Services, L.L.C., doing business as Solana Outdoor Living (“Respondent”), is the holder of License No. K-21.235275-D issued by the Registrar of Contractors (“Registrar”). 2. On March 22, 2012, Roth Production Company, L.L.C. (“Complainant”) filed a written Complaint with the Registrar alleging that Respondent owed Complainant an outstanding balance of $6,550.00 for advertising. The Registrar designated Complainant’s Complaint as Case No. 2012- 1702. 3. The Registrar issued a Citation and Complaint in Case No. 2012-1702 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A)(11). 4. The Registrar forwarded Case No. 2012-1702 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing in Case No. 2012-1702 advising the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. The commencement of the scheduled hearing was delayed fifteen minutes to allow for the late arrival of an authorized representative for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 7. On January 3, 2011, Complainant and Respondent entered into a written agreement (“Contract”) for Respondent’s participation in the Rosie on the House Referral Network Partnership Program (“Program”). The Contract’s term was from January 1, 2011, to December 31, 2011. 8. The Program afforded the following benefits to Respondent: (i) Respondent’s business information was available on the Program’s website; (ii) A listing in the Program under landscaping and pool categories; (iii) Marketing for Respondent and the Program covered the metropolitan Tucson area; (iv) Respondent was invited to the Program’s mixers for networking; (v) Respondent had the opportunity to participate with the Program at various events including home shows; (vi) Respondent could use the Program’s official logo in its advertising; and (vii) One sixty-second commercial weekly during the Program’s Saturday radio show on KNST 790 AM featured Respondent. 9. Respondent agreed to pay Complainant a monthly fee for the services. 10. The Contract provided that “[t]his contract is a non-cancelable, annual 12-month contract.” 11. Complainant provided all services to Respondent pursuant the terms of the Contract. 12. Respondent breached the parties’ Contract by failing to pay its monthly fees to Complainant, despite receiving all services from Complainant. The evidence of record established that Respondent owes an outstanding balance of $6,550.00 to Complainant pursuant to the terms of the Contract. 13. Administrative notice is taken of the Respondent’s prior License record as reflected on the Registrar’s public website on November 16, 2012. Such prior License record reflects the following: (i) Voluntary Cancellation on October 31, 2012; (ii) Suspension for lack of bond on October 26, 2012; (iii) Three open complaints; and (iv) One disciplined closed complaint. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the voluntary cancellation of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline on that license for a proven statutory violation in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent breached the parties’ Contract by failing to pay the outstanding sum of $6,550.00 to Complainant. RECOMMENDED ORDER Respondent’s License No. K-21.235275-D shall be revoked on the effective date of the Order entered in Case No. 2012-1702. If Respondent pays the sum of $6,550.00 in certified funds to Complainant on or before the effective date of the Order entered in Case No. 2012-1702, then the above-provided license revocation shall not take place and Case No. 2012-1702 shall be closed. In the event of certification of the Administrative Law Judge by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days from the date of certification.

Done this day, November 16, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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