ALJDEC decisions subject to certification as final

2014A-3467-ROC · Registrar of Contractors · 2015-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 23, 2015 APPEARANCES: Parviz Azad on his own behalf; Vincent Sandoval for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On October 7, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on November 23, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Summer Heating and Air, LLC (“Summer Heating”), holds license number R39R.243191-R issued by ROC.[1] Vincent Sandoval is a member of Summer Heating. 3. In June 2014, Complainant Parviz Azad’s home warranty company arranged for Summer Heating to repair the air conditioner at Mr. Azad’s home. 4. Mr. Azad wrote a check directly to Mr. Sandoval in the amount of $1500.00. 5. The parties dispute what happened, with Mr. Azad taking the position that Summer Heating repeatedly failed to appear when it said that it would and that the home warranty company eventually sent another company to do the work. 6. Mr. Sandoval testified to the effect that Summer Heating was making an effort to do the required work, but there were issues related to the home warranty company and securing its approval for the required work. 7. Mr. Sandoval testified that Summer Heating had delivered an air conditioning unit the Mr. Azad’s home and that that unit was installed by another contractor. Mr. Azad testified that no such unit had been delivered. 8. On July 15, 2014, Mr. Azad (and his wife) filed suit against Summer Heating and Mr. Sandoval in the Maricopa County Justice Courts. In that suit, Mr. Azad alleged, in essence, that Summer Heating and Mr. Sandoval had not performed the services for which Mr. Azad had paid the $1500.00. 9. In a Minute Entry/Order dated February 9, 2015, Maricopa County Justice Court entered a Judgment in Mr. Azad’s favor against Mr. Sandoval, but not against Summer Heating. The Court found that Mr. Sandoval, by accepting a check made out to him personally, could not use the “corporate shield” to protect himself from damages and could not transfer the obligation and debt (judgment) to Summer Heating. 10. The Court awarded Mr. Azad $1500.00 plus court costs with interest accruing at 10% per annum. The Court found that Mr. Azad had not proven any additional damages (e.g. lost wages, meals). 11. In a Ruling on Motion dated March 17, 2015, the Court confirmed that it had not found any damages beyond the $1500.00 plus costs and explained that based on its initial Order, there was no basis for Mr. Azad to collect from Summer Heating if Mr. Azad would not, or could not, pay the judgment. 12. As of the hearing date in this matter, neither Mr. Sandoval nor Summer Heating had paid the judgment. 13. Mr. Sandoval argues that the Justice Court decision shows that Summer Heating is not responsible and that this transaction was strictly between him and Mr. Azad. 14. On August 28, 2014, Mr. Azad filed with ROC a Complaint against Summer Heating. 15. On June 17, 2015, ROC issued a Citation alleging that Summer Heating may have violated Ariz. Rev. Stat. section 32- 1154(A)(1). CONCLUSIONS OF LAW 1. A party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 3. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 5. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 6. Ariz. Rev. Stat section 32-1155(A) provides that “The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” 7. Summer Heating does not argue that the Justice Court’s Order was in error, but rather only that the Order applies to Mr. Sandoval and not Summer Heating. Because Ariz. Rev. Stat section 32- 1155(A) applies to persons listed on a license, this distinction is not determinative of the charges in the Citation. 8. The preponderance of the evidence shows that Summer Heating violated Ariz. Rev. Stat section 32-1155(A)(1) as alleged. ORDER IT IS ORDERED that on the effective date of the final Order in this matter Summer Heating and Air, LLC’s license number R39R.243191-R is revoked unless the Registrar of Contractors receives and accepts written proof that Summer Heating and Air, LLC has paid to Parviz Azad $ 1500.00. 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 is forty days after the date of that certification. Done this day, December 3, 2015.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s website shows Summer Heating’s license number as 243191. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used.

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