ALJDEC decisions subject to certification as final

2016A-467-ROC · Registrar of Contractors · 2016-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wieslaw and Dorota Malinowski,

COMPLAINANT,

v.

Cardinal Heating & Cooling Inc,

License No: 282148

RESPONDENT.

No. 2016A-467-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 12, 2016

APPEARANCES: Beau Cruz, Investigator for Registrar of Contractors; German Quijada, Respondent

ADMINISTRATIVE LAW JUDGE: Amy Foster

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“the Registrar”) issued License No. 282148 to Respondent. Respondent’s address of record is 4127 W Virginia Ave Phoenix, AZ 85009-1106.

Respondent is a heating and air conditioning installer. On or about February 8, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had not replaced a metal elbow in their air conditioning unit as the contract had specified. Respondent had instead provided a metal transition. There was no allegation that the work had not been done to code.

Complainant provided the address of 7495 Sandborne Ave, Burnaby, BC, V3N4V4 on the complaint that it filed with the Registrar.

Complainant subsequently requested a hearing on its complaint against Respondent. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2), A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation, disputing the charges asserting that Respondent and Complainant had verbally agreed to the change from a metal elbow to the metal transition before any work was done.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing on September 12, 2016, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint and to Respondent at its address of record.

Complainant did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to prosecute his complaint against Respondent.

CONCLUSIONS OF LAW

This dispute lies within the Registrar’s jurisdiction to resolve.

Because the Notice of Hearing that the Registrar mailed to the address on Complainant’s complaint was reasonable, Complainant is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish a statutory violation by a preponderance of the evidence.

Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to prosecute its complaint precludes a finding that Respondent violated the provisions cited in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Case No. 2015-2903 against Respondent Cardinal Heating & Cooling, Inc.’s License No. 282148 shall be dismissed.

In the event of certification of this 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 the certification.

Done this day, October 6, 2016.

/s/ Amy Foster

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors