ALJDEC decisions subject to certification as final

2012A-1998-ROC-res · Registrar of Contractors · 2013-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2013, at 8:00 a.m. APPEARANCES: Complainant Judy K. Beckmark appeared on her own behalf; Respondent A & M Cooling Heating Electric LLC dba Ernie Merrill’s Minuteman Home Improvements appeared through Ernest Edward Merrill, Jr., its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. C39R.251474-R for residential air conditioning and refrigeration to A & M Cooling Heating Electric LLC dba Ernie Merrill’s Minuteman Home Improvements (“Respondent”). 2. On or about April 17, 2012, Judy K. Beckmark (“Complainant”) filed a Complaint with the Registrar alleging that Respondent had improperly installed a Trane HVAC unit on her house at 2228 East Lawrence Road, Phoenix, Arizona and cut the wires to her existing Honeywell air sensors, preventing the sensors from optimizing the performance of her HVAC system. 3. Complainant’s Complaint against Respondent proceeded to an evidentiary hearing in the Office of Administrative Hearings (“the OAH”), an independent agency. At the hearing, the parties made a settlement under which, as consideration for Complainant’s withdrawal of her Complaint, Respondent agreed to pay Complainant up to $2,000.00 to allow her to hire a contractor of her choice to remove and reinstall the unit and to replace the air sensors. 4. On February 26, 2013, the Registrar issued an Order Setting Administrative Hearing that provided in relevant part as follows: On or about November 6, 2012, the Registrar received an Order Vacating Hearing from the Office of Administrative Hearings providing that at the time set for the hearing to begin, the parties informed the Administrative Law Judge that they had reached a settlement agreement in principle. Subsequently, the parties confirmed on the record that they had reached a settlement, including submitting the signed settlement agreement into the record.

On or about January 24, 2013, Complainant submitted to the Registrar written correspondence asserting that Respondent has not performed the terms of the settlement agreement as promised. The Registrar treated this submission as a request to re-open and set for hearing.

Upon review and consideration of this request, as well as the entire file in this matter, IT IS ORDERED that an administrative hearing be scheduled in the expedited course of docketing in the Phoenix area. At the administrative hearing, the parties may offer evidence and testimony as to whether or not Respondent has engaged in conduct in violation of A.R.S. § 32-1154(A)(2), § 32-1154(A)(3), namely R4-9-108 and § 32- 1154(A)(23) as set forth in the Citation and Complaint, and further breached the terms of the parties’ settlement.

Further, if prior to the date and time set for a hearing, the parties reach a settlement or resolution in this matter, the parties will be bound by such, and this matter will be closed with prejudice and shall not be reopened. [Footnote omitted.]

5. Pursuant to the Registrar’s February 26, 2013 Order Setting Administrative Hearing, a hearing was held on May 3, 2013, at 8:00 a.m. Complainant appeared on her own behalf with her witness, Doug Schramm. Respondent appeared through its qualifying party and member, Ernest Edward Merrill, Jr. 6. Complainant testified that Respondent did not respond to e-mails and had not paid her anything pursuant to the settlement. 7. Complainant testified that she had paid another contractor to reinstall the HVAC unit, but that it would cost of total of $2,337.75 to also replace the room sensors. Complainant testified that she could not afford to have all the work done. 8. Mr. Merrill testified that he did not want to send a check to Complainant to pay for the settlement unless she agreed to sign a release. Mr. Merrill testified that Complainant refused to sign a release. 9. Mr. Merrill also testified that Complainant demanded that he pay her in cash, but that he did not want to carry that much cash, and that he wanted a record of his payment. 10. Mr. Merrill testified that on the day before the May 3, 2013 hearing, he had offered to deliver a cashier’s check to Complainant’s house for the $2,000.00 due under the settlement. Mr. Merrill testified that Complainant requested that she meet him at his bank so she could cash the check there. Mr. Merrill testified that he waited for an hour, but Complainant never showed up at his bank. 11. At the hearing, Mr. Merrill attempted to tender a cashier’s check in the amount of $2,000.00 to Complainant. 12. Complainant testified that she did not want to accept the cashier’s check because Respondent could issue a stop payment on it. Complainant testified that throughout her interaction with Mr. Merrill, he had behaved unprofessionally and dishonorably. 13. Complainant did not wish Respondent to perform any additional work at her house to resolve her Complaint. 14. Complainant agreed to accept Respondent’s cashier’s check and attempt to cash it at Respondent’s bank if the record was held open to allow her to present evidence if Respondent’s bank dishonored the check. 15. The Administrative Law Judge informed the parties that she would hold a further hearing at 1:00 p.m. on May 3, 2013, to allow Complainant to present further evidence if Respondent’s bank dishonored the cashier’s check. Although the record was not closed until 1:15 p.m. on May 3, 2013, neither party appeared. As of May 13, 2013, neither party contacted the OAH to request an opportunity to present additional evidence. 16. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 13, 2013. Such prior License record reflects that Respondent’s License No. C39R.251474-R was current, one complaint was closed as Resolved/Settled/Withdrawn complaint, and one open complaint was pending. CONCLUSIONS OF LAW 1. This matter lies with the Registrar’s jurisdiction.[1] 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 3. Respondent did not dispute that its work on Complainant’s house required correction. 4. Respondent established that it fully performed the parties’ settlement, albeit belatedly. 5. Respondent’s current license would have allowed it to perform corrective action at Complainant’s house. It appeared that Complainant wanted Respondent to pay her more than the amount of the settlement and to make the payment in cash. 6. Complainant’s decision not to allow Respondent to perform corrective work does not entitle her to restitution in an amount that is greater than the amount that Respondent agreed to pay in the settlement. The Registrar cannot require Complainant to sign a release and it would not be fair to require Respondent to pay Complainant in cash. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Complainant Judy K. Beckmark’s Complaint in Case No. 2012-1998 against Respondent A & M Cooling Heating Electric LLC dba Ernie Merrill’s Minuteman Home Improvements’ License No. C39R.251474-R shall be closed as Resolved/Settled/Withdrawn. 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, May 13, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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