ALJDEC

99F-2307-ROC-com · Registrar of Contractors · 2000-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 29, 2000 APPEARANCES: Complainant failed to appear. Respondent appeared through its president, Danny Kregle. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. The instant matter came on for Compliance Hearing pursuant to an Order from the Registrar of Contractors. The Notice of Compliance Hearing, prepared by the Registrar, provides that the purpose of the instant hearing is to “determine whether or not Respondent has substantially complied with the terms and conditions of the Decision and Order issued on January 25, 2000, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a direct result of this hearing.

2. The original Decision and Order required Respondent to comply with one, and only one, of three possible conditions, in order to avoid a suspension of its license. The alternative conditions were as follows:

a. Perform appropriate and effective remedial work on Complainant’s air conditioning system in order to insure that the system provides proper and adequate cooling to the home. b. Remove the new compressors and pay Complainant the sum of $6,730.00. c. Conclude other mutually acceptable arrangements with Complainant.

3. It is important to note, in regard to alternative condition “a,” above, that paragraph no. 5 of the Findings of Fact set forth in the January 25, 2000 Decision and Order of the Registrar states, in pertinent part, “Complainant did not contract with Respondent to replace or repair the air-handlers, duct system, or thermostats. Therefore, Complainant is not entitled to have same repaired or replaced by Respondent at no cost.”

4. Respondent testified at the hearing that it selected alternative condition “a,” in order to accomplish compliance with the Registrar’s Order. Respondent indicated that it returned to Complainant’s home, subsequent to issuance of the Registrar’s January 25, 2000 Order, and accomplished further remedial work to insure that the air-conditioning compressors, which it had previously installed, were functioning properly, without any further problem regarding the condensers or coils “freezing- up”.

5. Uncontroverted evidence of record at the instant compliance hearing established that subsequent to accomplishing further remedial work on the new air conditioner compressors, that same were working properly, thereby constituting substantial compliance with the terms and conditions of the Registrar’s January 25, 2000 Decision and Order.

6. A review of the Notice of Compliance Hearing mailed by the Registrar of Contractors, reveals that a copy of said notice was mailed to Complainant’s address of record. By her failure to appear for the scheduled compliance hearing, Complainant failed to present any matters in contravention of the testimony and evidence presented by Respondent.

CONCLUSIONS OF LAW

1. The original Decision and Order entered in this matter is a self- operative order, requiring Respondent to provide the Registrar of Contractors with proof that it has complied with the terms and conditions set forth therein. Thus, the burden of proof at a compliance hearing is on the Respondent.

2. The undisputed evidence of record established that Respondent has accomplished substantial compliance with the terms and conditions of the original Decision and Order entered in this matter. Based on this finding of compliance, and in accordance with the other provisions of said Decision and Order, the Registrar should close this Citation and Complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter on compliance hearing, that this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, October 3, 2000

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826