ALJDEC - Licensing

2022A-07175-CHC-ROC · Registrar of Contractors · 2023-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Eric Wagner,

COMPLAINANT,

v.

D and H Air Conditioning Company Inc.

dba D & H Air Conditioning & Heating

Company

ROC License No. 070188,

RESPONDENT.

No. 2022A-07175-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 18, 2023 at 9:00 AM.

APPEARANCES: No appearance(s) by or on behalf of Eric Wagner (“Complainant”). Evan Thompson, Esq. appeared on behalf of D and H Air Conditioning Company Inc. (“Respondent”) with Philip Robles as a witness. John Smith appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

FINDINGS OF FACT

Background and Procedure

On April 14, 2023, the Registrar issued a Notice of Hearing on Contested Case (“Notice of Hearing”) in the above-captioned matter which set a hearing before the Office of Administrative Hearings (“OAH”), an independent state agency, at 1:00 p.m. on May 18, 2023, to determine if grounds existed for the Registrar to discipline Respondent’s contracting license based on alleged violations of Arizona Revised Statutes §§ 32-1154(A)(2)(b), 1154(A)(3); Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-108(a-b), and 1154(A)(22).

On April 20, 2023, OAH received a Motion to Continue on behalf of Respondent.

On April 21, 2023, OAH received a telephone call from Complainant whereby he noted that he had no objection to Respondent’s motion.

On April 28, 2023, OAH issued a Minute Entry – Granting Continuance which reset the matter for hearing at 9:00 a.m. on July 18, 2023. Correspondence was not returned as undeliverable by either party.

On July 11, 2023, Respondent submitted its Disclosure Statement, including proposed hearing exhibits 1-10, to OAH.

Hearing Evidence

On July 18, 2023, though afforded a fifteen (15) minute grace period, Complainant failed to appear.

No correspondence was received on behalf of Complainant to provide notice of unavailability, appear via alternative means, or continue.

No settlement is on file for this matter at OAH.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“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. Admin. Code R2-19-117 provides that if a party fails to appear at a hearing, the administrative law judge may vacate the hearing and return the matter to the agency for any further action.

Here, Complainant failed to appear without establishing good cause. As such, it must be concluded that Complainant defaulted his appearance.

Because the record does not establish violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), 1154(A)(3); Ariz. Admin. Code R4-9-108(a-b), and 1154(A)(22), no grounds exist for the Registrar to take disciplinary action against ROC License No. 070188.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Registrar dismiss Complaint No. 2022-07175.

NOTICE

Pursuant to Ariz. Rev. Stat. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the Final Decision by the Office of Administrative Hearings.

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.

Done this day, July 18, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Eric Wagner, Complainant

8760 N. Placita De Reynaga

Oro Valley, AZ 85704

[email redacted]

Evan L. Thompson, Esq.

Thompson Krone, PLC, Counsel for Respondent

3430 E. Sunrise Dr., Ste. 110

Tucson, AZ 85718

[email redacted]

By: OAH Staff