ALJDEC decisions subject to certification as final

2018A-2451-CHC-ROC · Registrar of Contractors · 2018-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 2018, 8:30 A.M. APPEARANCES: Complainant Angelo Scarpitta appeared on his own behalf; no appearance was made on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Brothers In Faith Heating & Cooling, LLC (Respondent), is the holder of License Number 312238 issued by the Registrar of Contractors (Registrar). 2. On or about May 31, 2018, Angelo Scarpitta (Complainant) filed a Complaint against Respondent that was forwarded to the Registrar alleging abandonment and poor work in connection with Respondent’s installation of an air conditioning unit at a residence in Mesa, Arizona. 3. After an inspection performed by the Registrar on July 3, 2018, the Registrar issued a Directive, dated July 16, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by August 6, 2018, as follows: Complaint Item 1: Did not run new thermostat wire and new wiring. Complaint Item 2: Did not install wifi thermostat. Complaint Item 6: Poor installation of AC unit. (This item has been added after the original complaint item). 4. After been informed that the Respondent did not complete corrective work, the Registrar then issued a Citation to Respondent, dated August 9, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards). c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar issued a Notice of Hearing, dated August 14, 2018, that set a hearing for September 20, 2018, at 8:30 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about August 14, 2018, at its address of record. 6. 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.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing. 7. A hearing was held on September 20, 2018, at 8:30 A.M. Complainant Angelo Scarpitta testified on his own behalf. Dennis Bierma (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 19.[1] 8. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing on its own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the hearing be continued. 9. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. He further testified that none of the Directive items were completed. 10. Complainant Angelo Scarpitta testified as that the issues he has had with Respondent’s work and the deficiencies that still exist. He also presented bids he had received to replace or repair his present unit. (Complainant’s Exhibit 17-19). 11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects that Respondent’s License Number 312238 was revoked as of January 8, 2018. The revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline. CONCLUSIONS OF LAW 1. 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. 2. The revoked status of Respondent’s license does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”). 3. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119. 4. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 5. The copy of 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 hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D). 6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following the following acts:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. …

3. Violation of any rule adopted by the registrar. …

22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. 7. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9- 108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 8. Complainant has presented sufficient evidence to demonstrate that Respondent has refused to perform work and that with respect to the work that Respondent did perform, Complainant has established that Respondent failed to perform the work in a professional and workmanlike manner. No evidence was presented to rebut Complainant’s evidence or to support a legal excuse for refusal to perform work or to support a valid justification for the failure to perform corrective work. 9. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), A.R.S. § 32- 1154(A)(3), and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Brothers In Faith Heating & Cooling, LLC’s, License Number 312238 is revoked. 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 five days from the date of the certification. Done this day, October 9, 2018.

/s/ Roger Geddes Administrative Law Judge Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Tribunal also took administrative notice of the Registrar’s file.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826