ALJDEC decisions subject to certification as final

2012A-5093-ROC · Registrar of Contractors · 2013-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 30, 2013 APPEARANCES: Complainant Virginia Cruz appeared on her own behalf. Respondent AL Tech Energy Management Inc did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C39R.103060-R to AL Tech Energy Management Inc. (“Respondent”). On October 16, 2012, the Registrar received a Complaint against Respondent from Virginia Cruz (“Complainant”) regarding damage to her home that purportedly occurred when Respondent repaired her air conditioner unit. After the Registrar assigned the Complaint to its inspector, Ted Gerold, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on November 1, 2012, instructed that Respondent “repair all of the damages done to the master bedroom attic access trim by appropriate means. This includes re-nailing, prepping, and re-painting.” Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on October 10, 2013, at 8:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” On or about October 8, 2013, the Office of Administrative Hearings issued a minute entry granting a continuance. The minute entry set the continued hearing for 1:00 p.m. on October 30, 2013. The Office of Administrative Hearings mailed copies of the minute entry to Respondent at its address of record. A hearing was held on October 30, 2013. Complainant testified on her own behalf and submitted one exhibit. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence On or about September 21, 2012, Complainant contacted Respondent regarding an issue she was having with the fan on her air conditioner running constantly. Respondent sent a service technician to Complainant’s home to inspect the air conditioner. Once at the home, the service technician entered Complainant’s attic through an access in Complainant’s master bedroom. When exiting the attic, the service technician damaged the wood trim around the attic access. Inspector Gerold testified that at the time of the prehearing inspection, no corrective work had been completed by Respondent. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 14, 2013. Such prior License record reflects that Respondent’s License No. C39R.103060-R was revoked on August 26, 2013. Such prior License record also reflects that there was one prior complaint that resulted in discipline against Respondent’s license and that there were two open complaints. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C). 3. The Notice of Hearing that the Registrar mailed to Respondent at its address of record and the minute entry that the Office of Administrative Hearings mailed to Respondent at its address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. § 41-1092.04 and A.R.S. § 41-1092.05(D). 4. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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). “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). 5. The undisputed credible testimony established that Respondent damaged the wood trim around Complainant’s attic access while inspecting her air conditioner. Therefore, Respondent did not complete its work at Complainant’s property in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 6. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(23).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent AL Tech Energy Management Inc’s License No. C39R.103060-R for a period of 30 days. It is further recommended that in addition to the revocation, Respondent’s License shall be placed on disciplinary probation for a period of 180 days commencing on the expiration of the 30-day revocation. It is further recommended that Respondent pay $500.00 as a civil penalty to the Registrar pursuant to A.R.S. § 32-1154(D). 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, November 14, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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.” [2] 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.”

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