ALJDEC decisions subject to certification as final

2021A-04011-OMC-LS-ROC · Registrar of Contractors · 2022-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Aria Air Conditioning and Heating, Inc.,

License No. ROC 267741,

RESPONDENT

No. 2021A-04011-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 12, 2022

APPEARANCES: Assistant Attorney General John Tellier represented Complainant Arizona Registrar of Contractors. Assistant Chief Counsel Chance Peterson appeared as a witness. Respondent Aria Air Conditioning and Heating, Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

On September 24, 2010, the Arizona Registrar of Contractors (“Registrar”) issued License No. 267741 to Aria Air Conditioning and Heating, Inc. (“Respondent”). Philip Andrew Hoctor is named on the license as its Qualifying Party, an officer, and 50% owner. Mr. Hoctor was named on Respondent’s License No. 267741 beginning August 17, 2010 (the date of the license application) and has not dissociated from the license.

On November 12, 2006, the Registrar issued License No. 226450 to Mirage Custom Homes, LLC (“Mirage”). Mr. Hoctor was named as the Qualifying Party, owner and sole member on Mirage’s License No. 226450.

On August 1, 2016, the Registrar received a Name Change Request for Mirage’s License 226450, adding the DBA, “Hoctor and Sons Construction.”

Complaint No. 2020-00145

On January 8, 2020, the Registrar received a complaint, designated as Complaint No. 2020-00145, filed by Torres Drywall and Plastering, LLC against Mirage’s License No. 226450, alleging non-payment of $10,240.00.

On March 24, 2021, the Registrar issued a Final Administrative Decision and Order, by default, in Case No. 2020-00145, finding that Mirage violated A.R.S. § 32-1154(A)(10) as charged in the Citation and Complaint, and suspended Mirage’s License No. 226450 until Mirage pays $10,240.00 to Torres Drywall and Plastering, LLC.

On March 31, 2020, Mirage submitted a request to set aside the default Administrative Decision and Order, stating, “[w]e are working very hard to bring in the monies to pay the balance on [this] complaint.”

On April 27, 2020, the Registrar issued an Order Denying Request to Set Aside Final Administrative Decision and Order (Default).

On March 31, 2020, Mirage’s License No. 226450 was suspended, and the suspension has not been cleared.

Complaint No. 2020-00666

On February 7, 2020, the Registrar received a complaint, designated Complaint No. 2020-00666, filed by The Harlan Company against Mirage’s License No. 226450, alleging non-payment of $2,282.45.

On March 31, 2020, the Registrar issued a Final Administrative Decision and Order, by default, in Case No. 2020-00666, finding that Mirage violated A.R.S. § 32-1154(A)(10) as charged in the Citation and Complaint, and suspended Mirage’s License No. 226450 until Mirage pays $2,282.45 to The Harlan Company.

On March 31, 2020, the Registrar received from Mirage a response to the Final Administrative Decision and Order in which Mirage indicated that it would resolve the matter, however required additional time in order to make a payment due to delays caused by the pandemic.

On April 27, 2020, the Registrar issued an Order Denying Request to Set Aside Final Administrative Decision and Order (Default).

On March 31, 2020, Mirage’s License No. 226450 was suspended, and the suspension has not been cleared.

Complaint No. 2020-00881

On February 20, 2020, the Registrar received a complaint, designated Complaint No. 2020-00881, filed by Builders Services Group, Inc. against Mirage’s License No. 226450, alleging non-payment of $6,290.72.

On August 13, 2020, the Registrar issued a Final Administrative Decision and Order in Case No. 2020-00881, accepting the Administrative Law Judge Decision finding that Mirage violated A.R.S. § 32-1154(A)(10) as charged in the Citation and Complaint, and suspended Mirage’s License No. 226450 until Mirage pays $6,290.72 to Builders Services Group, Inc.

On September 23, 2020, Mirage’s License No. 226450 was suspended, and the suspension has not been cleared.

Philip Hoctor is named on Respondent’s License No. 267741, and was also named on Mirage’s License No. 226450 at the time the acts and/or omissions occurred that resulted in the suspension of Mirage’s License No. 226450 in Case Nos. 2020-00145, 2020-00666, and 2020-00881.

On February 4, 2022, the Registrar issued a Citation and Complaint against Respondent for alleged violation(s) of A.R.S. § 32-1154(A)(20).

On February 18, 2022, Respondent’s Answer was timely received by the Registrar. In the Answer for Respondent, Philip Hoctor stated, “[m]y legal team and I have read the items listed and are working to get these matters resolved and will be in touch very soon.”

On March 4, 2022, the Registrar issued a Notice of Hearing to the above-captioned parties, setting this matter for hearing on April 12, 2022, at 9:00 a.m., to be held via Google Meet. On March 8, 2022, the Office of Administrative Hearings issued to the parties an Order Setting Hearing Via Google Meet, in which the Google Meet link for hearing was provided to the parties.

On April 12, 2022, at the time set for hearing, Assistant Attorney General John Tellier represented the Registrar. Assistant Chief Counsel for the Registrar, Chance Peterson, appeared as a witness. Respondent failed to appear. Mr. Peterson testified consistently with the above-delineated Findings of Fact and referenced the Registrar’s twenty-two exhibits, all of which were admitted into evidence.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction, and was properly brought before the Office of Administrative Hearings.

The purpose of the Registrar’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.”

A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving 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 record reflects that Philip Hoctor was the Qualifying Party, owner and sole member on Mirage’s License No. 226450 in Case Nos. 2020-00145, 2020-00666, and 2020-00881, and that the suspensions in those cases have not been cleared. It is also undisputed that Philip Hoctor is currently the Qualifying Party, an officer, and 50% owner on Respondent’s license.

Because Philip Hoctor did not disassociate from Respondent’s license prior to the act(s) and/or omission(s) that occurred in Case Nos. 2020-00145, 2020-00666, and 2020-00881, the Registrar has established by a preponderance of the evidence that Respondent is in violation of A.R.S. § 32-1154(A)(20). As such, the Registrar has also established grounds to take disciplinary action against Respondent’s contractor’s license.

The Tribunal concludes that the indefinite suspension of Respondent’s 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, Aria Air Conditioning and Heating, Inc.’s License No. 267741 be suspended until the suspensions have been cleared in Case Nos. 2020-00145, 2020-00666, and 2020-00881.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, April 18, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary

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