ALJDEC decisions subject to certification as final
2022A-00805-CHC-ROC · Registrar of Contractors · 2022-06-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dale Peterson,
COMPLAINANT,
v.
Michael Anthony Lioy Jr.
License No. ROC 324775,
RESPONDENT.
No. 2022A-00805-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 1, 2022
APPEARANCES: Complainant Dale Peterson appeared on behalf of herself. Respondent Michael Anthony Lioy Jr. did not appear.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant Dale Peterson and Respondent Michael Anthony Lioy Jr. entered into a contract wherein Mr. Lioy Jr. agreed to install a hearing, ventilation, and air conditioning system (HVAC) in Ms. Peterson’s home.
2. On September 20, 2021, Mr. Lioy Jr. started work.
3. On November 1, 2021, Mr. Lioy Jr. stopped work.
4. On or about February 4, 2022, Ms. Peterson filed a complaint with the Arizona Registrar of Contractors (ROC) alleging abandonment on the part of Mr. Lioy Jr.
5. On February 22, 2022, ROC Investigator Greg Johndrow conducted a job-site inspection. Investigator Johndrow substantiated the two items listed in Ms. Peterson’s complaint.
6. On February 22, 2022, the ROC issued a Directive to Mr. Lioy Jr. The Directive provided, in relevant part, as follows:
After investigation, the [ROC] determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the [ROC]’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 11, 2022.
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “One of the functions of the unit does NOT work”
Investigator’s Observations: Verified. The complainant demonstrated the unit does not operate when set in fan mode. I observed the fan operated with the unit set in heat mode and does not operate with the unit set in fan mode.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the [ROC]; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 2: “No paperwork for the unit ”
Investigator’s Observations: Verified. The Respondent sent an email response to the complaint on 2-4-22, at which time the Respondent stated, “I will mail my customer all the paperwork the units came with.”
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the [ROC]; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
7. Mr. Lioy Jr. mailed the paperwork for the HVAC to Ms. Peterson. However,
Mr. Lioy Jr. did not correct Complaint Item 1.
8. On March 18, 2022, the ROC issued a Citation against Mr. Lioy Jr.’s license. Through the Citation, the ROC alleged that Mr. Lioy Jr. may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) section R4-9-108(A); A.R.S. section 32-1154(A)(22).
9. Mr. Lioy Jr. filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. On April 28, 2022, the ROC issued a Notice of Hearing setting the matter for hearing on June 1, 2022 at 1:00 p.m., by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
12. The Notice of Hearing showed that the hearing was set to consider the
charges made in the Citation and Complaint.
13. A hearing was held on June 1, 2022.
14. At hearing, Ms. Peterson testified on behalf of herself and presented the testimony of her husband, Michael Magyar. Investigator Johndrow testified regarding his investigation of the complaint and the issuance of the Directive.
15. Ms. Peterson agreed with the findings of Investigator Johndrow. Mr. Magyar explained that the HVAC unit installed by Mr. Lioy Jr. did not function properly.
16. Mr. Lioy Jr. did not appear at the hearing on June 1, 2022. Mr. Lioy Jr. did not file a request to appear telephonically. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Mr. Lioy Jr. Mr. Lioy Jr. did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Mr. Lioy Jr. did not present any evidence to defend his license.
17. Administrative notice is taken of the ROC’s public website. According to the information available on the website on June 1, 2022, Mr. Lioy Jr.’s license was first issued on June 14, 2019, and is active. Such prior License record also shows that there is only one open complaint against Mr. Lioy Jr.’s license. Mr. Lioy Jr.’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and a civil penalty.
CONCLUSIONS OF LAW
1. This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.
2. 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 a preponderance of the evidence. See A.A.C. R2-19-119.
3. A preponderance of the evidence is “such proof as convinces the trier of
fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
4. The Administrative Law Judge may consider the ROC’s administrative record. See A.A.C. R4-9-118.
5. The preponderance of the evidence shows that Respondent did not install the HVAC in a professional and workmanlike manner, which is a violation of A.R.S. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence shows that Respondent failed to correct Complaint Item 1 listed in the ROC’s Directive without valid justification, which is a violation of A.R.S. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the ROC shall suspend license number 324775 held by Michael Anthony Lioy Jr. for one day. It is further recommended that the ROC require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. section 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the ROC’s final order, the ROC revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, June 1, 2022.
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 is forty days after the date of that certification.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
ROC of Contractors
By Miranda Alvarez
Legal Secretary