ALJDEC decisions subject to certification as final

2013A-5195-ROC · Registrar of Contractors · 2014-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 26, 2014

APPEARANCES: The State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General John Tellier and ROC Staff Attorney Adam Stafford; Respondent failed to appear.

WITNESSES: Robert Ince, homeowner Steve Klein, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

The Registrar of Contractors (“Registrar” or “ROC”) brings this matter alleging violations of the contractor licensing statutes. Respondent failed to appear and contest the evidence. Therefore, the evidence against Respondent is uncontested. This tribunal entered into the record Exhibits 1 through 5 submitted by the ROC. Testimony from the witnesses listed above was presented. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommend Order finding that grounds exist to revoke the licenses. FINDINGS OF FACT 1. Respondent is the holder of licenses C39R.212627-R and L- 39.223273-C issued by the Registrar. They authorize Respondent to install and repair air conditioning systems in residential and commercial properties. Both licenses are current and active. 2. On April 4, 2012, Robert Ince contracted with Respondent to install a new air conditioning unit at his residence. The unit was installed and immediately had problems working correctly. It continually froze up. Respondent tried to repair it several times but was unsuccessful. Mr. Ince filed a complaint with the ROC. 3. After an on-site inspection, ROC Inspector Steve Klein issued a Corrective Work Order (“CWO”) finding that the duct work was too small for the unit and ordering Respondent to correct that situation by appropriate means. 4. Respondent failed to make appropriate corrections. 5. As noted, Respondent failed to appear and participate in the hearing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, the ROC bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Notice of Hearing.[3] The ROC has met that burden. 2. The Citation and Notice of Hearing alleges violations of A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO) against License No. C39R.212627-R. It also alleges violation of A.R.S. § 32-1154(A)(21) (prohibiting having a person named on the license who was also named on another license that is suspended or revoked) against License No. L- 39.223273-C. These will be addressed in turn. 3. The evidence also shows that Respondent violated A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108, for poor workmanship. 4. A.R.S. § 32-1154 (A)(23) requires licensed contractors to comply with CWOs unless they have “valid justification” not to do so. Respondent did not appear and present evidence of a valid justification for failing to comply with the CWO. Therefore, the evidence shows a violation of A.R.S. § 32-1154 (A)(23). 5. Respondent’s L-39.223273-C license may be in violation of A.R.S. § 32-1154(A)(21) (prohibiting having a person named on the license who was also named on another license that is suspended or revoked) as soon as the ROC suspends or revokes the C39R.212627-R license. As it now stands, there is no violation. 6. Administrative notice is taken of Respondent’s prior license record for License No. C39R.212627-R as reflected on the ROC’s public website on April 14, 2014. That prior record shows that Respondent has held the license since 2005 and has never been disciplined. This is a good record. 7. However, the appropriate outcome for this matter is to revoke License No. C39R.212627-R because Respondent has failed to appear and participate in the hearing process. This indicates an unwillingness to perform a basic duty of a regulated business, which is to cooperate with the regulatory system by attending hearings and either taking responsibility for actions or offering a defense. An entity not willing to participate in the hearing process is not helpful to the welfare of the people of the State of Arizona and should no longer be licensed. 8. Should the Registrar not suspend or revoke License No. C39R.212627-R, then no grounds for finding a violation of A.R.S. § 32- 1154(A)(21) exist and no violation should be found against License No. L- 39.223273-C. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors revoke License No. C39R.212627-R held by AZ Mad Heating and Cooling, Inc. IT IS FURTHER RECOMMENDED that, in the event that License No. C39R.212627-R held by AZ Mad Heating and Cooling, Inc. be suspended or revoked, License No. L-39.223273-C should be suspended or revoked.

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 5 days from the date of that certification.

Done this day, April 14, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826