ALJDEC decisions subject to certification as final

2020A-05751-OMC-LS-ROC · Registrar of Contractors · 2021-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Aria Air Conditioning and Heating Inc.,

ROC License No. 267741,

RESPONDENT.

No. 2020A-05751-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 19, 2021 at 9:00 AM.

APPEARANCES: Assistant Attorney General John Tellier, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Chance Peterson as a witness. Philip Hoctor appeared on behalf of Aria Air Conditioning and Heating Inc. (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On November 12, 2006, the Registrar issued ROC License No. 226450 for General Residential B Contracting to Mirage Custom Homes LLC, doing business as Hoctor and Sons Construction. Philip Andrew Hoctor was listed on the license as its Qualifying Party.

On September 24, 2010, Respondent was issued ROC License No 267741 for Specialty Residential R-39R Air Conditioning and Refrigeration, with a restriction, by the Registrar. The license is in good standing and has been renewed through September 30, 2022. Philip Andrew Hoctor is listed on the license as its Qualifying Party and Officer. There is one open complaint against the license, which is presumed to be related to this matter. The license has no disciplinary history.

On June 10, 2020, the Registrar issued a Final Administrative Decision and Order (“Order”) in Case No. 2019-04942, accepting an Administrative Law Judge Decision that recommended the revocation of ROC License No. 226450. The Registrar also assessed a $500.00 civil penalty against ROC License No. 226450, to be paid in full within 30-days of the effective date of the order.

On July 21, 2020, the Registrar issued a Default Final Administrative Decision and Order (“Default Order”) in Case No. 2020-02256 which suspended ROC License No. 226450 for 7-days and assessed a $250.00 civil penalty to be paid in full within 30-days of the effective date of the order.

On August 19, 2020, ROC License No. 226450 was revoked by the Registrar for failure to pay the Order’s $500.00 civil penalty.

On September 04, 2020, ROC License No. 226450 was revoked by the Registrar for failure to pay the Default Order’s $250.00 civil penalty.

Philip Andrew Hoctor was the Qualifying Party on ROC License No. 226450 at the time the acts and/or omissions occurred that resulted in the revocations of the license in Case Nos. 2019-04942 and 2020-02256.

On December 17, 2020, the Registrar issued a Citation and Complaint against Respondent on its own motion for alleged violation(s) of Arizona Revised Statutes (“Ariz. Rev. Stat.”) § 32-1154(A)(20).

On December 25, 2020, Respondent’s Answer was timely received by the Registrar. In the Answer for Respondent, Mr. Hoctor noted “I will pay the Citation needed and work with my legal counsel to correct this matter asap” [sic] and apologized for “any wrong doings that were completely unintentional.” [sic]

On January 27, 2021, the matter was referred to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

On February 08, 2021, the Registrar issued a Notice of Hearing to the above-captioned parties, setting this matter for hearing on March 17, 2021, at OAH’s Phoenix, Arizona office. The noted issue for hearing was to determine whether Respondent committed a violation of Ariz. Rev. Stat. § 32-1154(A)(20), and if so, whether said violation(s) established grounds for the Registrar to take disciplinary action against Respondent’s license.

On March 02, 2021, Respondent requested an Informal Settlement Conference with the Registrar, which was granted and held on March 16, 2021. OAH continued the hearing and set the matter for Status.

On April 19, 2021, the Registrar notified OAH that the parties were unable to resolve their dispute, and requested that the matter be reset for hearing.

The matter was continued several times, but untimely heard on July 19, 2021.

Hearing Evidence

The Registrar called Chance Peterson as a witness and submitted Exhibits 1-12. Respondent called Philip Hoctor as a witness. The Registrar’s Agency File was also admitted as its own exhibit. The substantive evidence of record is as follows:

Currently, Mr. Hoctor is Respondent’s sole owner; as he was allocated his brother’s 50% stake in the company.

Respondent’s current address of record is 5424 N. 106th Ave. Glendale, AZ 85307.

As of the date of the hearing, Respondent had not paid the $500.00 civil penalty assessed in Case No. 2019-04942 for ROC License No. 226450.

As of the date of the hearing, Respondent had not paid the $250.00 civil penalty assessed in Case No. 2020-02256 for ROC License No. 226450.

In closing, Respondent argued that Respondent’s record was “excellent” and beseeched the Tribunal for grace in permitting Mr. Hoctor to have the “benefit of the doubt” so that he could “save” his license and continue servicing Respondent’s existing customers.

In closing, the Registrar opined that facts in the record supported a revocation of Respondent’s license.

CONCLUSIONS OF LAW

These matters lie within the Registrar’s jurisdiction, and was properly brought before OAH.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar bears the burden of proof to establish grounds for discipline of 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.”

Ariz. Rev. Stat. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.”

The evidence in this matter is undisputed.

The record reflects that Mr. Hoctor was the Qualifying Party on ROC License No. 226450 in Case Nos. 2019-04942 and 2020-02256, and that civil penalties assessed in both cases, totaling $750.00, have never been paid by or on behalf of the license. It is also undisputed that Mr. Hoctor is currently the Qualifying Party on Respondent’s license. It is further undisputed that Respondent’s disciplinary record is exemplary, save the matter at bar.

Because Mr. Hoctor did not disassociate from Respondent’s license prior to the act(s) and/or omission(s) that occurred in Case Nos. 2019-04942 and 2020-02256, the Registrar has established by a preponderance of the evidence that Respondent is in direct violation of Ariz. Rev. Stat. § 32-1154(A)(20). As such, the Registrar has also established grounds to take disciplinary action against Respondent’s contractor’s license.

The Tribunal holds that conditional suspension of ROC License No 267741 is appropriate, just, and in the best interest of the public.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, Respondent Aria Air Conditioning and Heating Inc., ROC License No 267741, be suspended until $250.00 is tendered in certified funds to the Registrar in Case No. 2020-02256, and $500.00 is tendered in certified funds to the Registrar in Case No. 2019-04942.

IT IS FURTHER RECOMMENDED that, upon full payment of the aforementioned civil penalties, the Citation and Complaint in this matter be closed by the Registrar.

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 40 days from the date of that certification.

Done this day, August 09, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors