ALJDEC decisions subject to certification as final

2016A-2648-ROC · Registrar of Contractors · 2016-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Thomas Dale,

COMPLAINANT,

v.

24/7 AC LLC,

License No. CR39.282829-D,

RESPONDENT.

No. 2016A-2648-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 12, 2016, at 10:00 a.m.

APPEARANCES: William Thomas Dale (“Complainant”) appeared on his own behalf; 24/7 AC LLC (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about January 8, 2013, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR39.282829-D to Respondent. Respondent’s address of record is 1732 N. Wilbur St., Mesa, Arizona 85201-2334.

Complainant is the owner/occupant of a residence located at 911 S. Cerise, Mesa, Arizona 85208-5874.

On or about July 22, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had abandoned its contract to install insulation in Complainant’s house after Complainant had paid it $2,160.00. Complainant attached to his complaint a copy of Respondent’s invoice that showed that it had unclogged the air filter in the air conditioner unit and recommended that Complainant have additional insulation installed. The invoice did not contain an estimated date of completion or advise Complainant of his right to file a complaint with the Registrar for Respondent’s possible violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A) or provide the Registrar’s telephone number and website address.

On July 28, 2016, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to suspend or revoke its license under A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(12), namely A.R.S. § 32-1158(B).

Respondent filed a written answer to the Citation, which alleged generally that it was working to resolve the complaint.

On August 23, 2016, the Registrar issued a Notice of Hearing, setting this matter for a hearing before OAH on October 12, 2016, at 10:00 a.m. The Registrar mailed the Notice of Hearing to Respondent at its address of record.

A hearing was held on October 12, 2016. Complainant appeared and testified. Investigator Cruz also testified. The allegations in the complaint were established. Complainant stated that Respondent has not performed any more work on the project.

Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed more than fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of the Registrar’s public website pursuant to A.A.C. R4-9-117. According to the website, on this date, between May 17, 2016, and May 17, 2016, between June 20, 2016, and June 22, 2016, and between September 22, 2016, and September 28, 2016, the Registrar imposed finite suspensions on Respondent’s license; on August 12, 2016, and August 16, 2016, the Registrar suspended the license until Respondent complied with the final order in other cases; and on September 7, 2016, the Registrar suspended the license for a Recovery Fund payout credential .

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

Respondent’s suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish cause to suspend, revoke, or otherwise discipline Respondent’s contractor’s license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Complainant established by a preponderance of the evidence that Respondent abandoned the project, furnishing cause to revoke Respondent’s license under A.R.S. §§ 32-1154(A)(1).

The record indicates that Respondent’s contract with Complainant did not comply with A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158(B). If the contract had contained an estimated date of completion and Respondent had attempted to complete the project by the estimated date, Respondent might have avoided this complaint.

Respondent’s poor license history, failure to complete the job, and failure to appear for the hearing indicates that, at this time, it cannot be regulated. The Administrative Law Judge therefore does not recommended that the Registrar impose any additional discipline for Respondent’s violation of A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent 24/7 AC LLC’s License No. CR39.282829-D shall be 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 five days from the date of that certification.

Done this day, October 12, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors