ALJDEC decisions subject to certification as final

07F-G2026-ROC · Registrar of Contractors · 2009-01-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2009 APPEARANCES: Complainants failed to appear; Respondent was represented by authorized member Ray Kelly. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ 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. Respondent, At Your Service Landscaping, LLC, is, and during all times material hereto was, a contractor licensed by, and doing business in, the State of Arizona, holding a Class C-21 License, No. 199852. Ray Isaac Kelly is the qualifying party for the license and is a member of the limited liability company. A review of the licensing database maintained by the Registrar of Contractors indicates Respondent’s license was suspended, and remains suspended, for non-renewal, effective October 1, 2008. No open complaints are pending. 2. The administrative hearing held in this matter was a compliance hearing held pursuant to a Notice of Compliance Hearing issued by the Arizona Registrar of Contractors on December 24, 2008. That Notice directed that a compliance hearing be held to determine whether the Respondent had substantially complied with the terms and conditions of the Decision and Order issued on June 11, 2008, and to reconsider the appropriateness of any disciplinary penalty. 3. The Decision and Order referred to by the Registrar in the Notice was an Order of Closing which stated: “On or about April 14, 2008, Respondent submitted written correspondence with the Registrar providing a Notice of Settlement. Included in the correspondence were terms of a settlement that were signed off on by Complainant, Andrew Del Toro, and a representative of Respondent.” . . . “On or About April 30, 2008, the Registrar sent a copy of Respondent’s Notice of Settlement to Complainant providing Complainant with an opportunity to file a Response to Respondent’s Notice. As of today’s date, no Response has been filed.” . . . “In view of the foregoing…IT IS ORDERED that Case No. G07-2026 be closed as settled.”

4. On June 17, 2008, Complainant Del Toro filed a correspondence with the Registrar of Contractors alleging that Respondent had not complied with one of the terms of the settlement, specifically Respondent had not applied for appropriate permits as he had agreed to in the settlement. 5. Pursuant to the June 17, 2008 correspondence filed by Complainant Del Toro, the Registrar of Contractors set the matter for the instant Compliance Hearing before the Office of Administrative Hearings, an independent state agency. 6. The commencement of the instant hearing, scheduled for 1:30 p.m. on this date, was delayed 15 minutes to allow for the late arrival of Complainants or an authorized representative or attorney for Complainants. Complainants failed to appear individually or by proper authorized or legal representative. Neither Complainant had requested to appear telephonically. After the delay, the Administrative Law Judge conducted the hearing in the Complainants’ absence.[1] 7. At the hearing, Mr. Kelly moved into evidence, as Exhibit A, a copy of the settlement agreement referenced in the June 11, 2008 Order of Closing. Mr. Kelly testified that all 13 items on the settlement agreement have been completed as agreed between the parties. Mr. Kelly testified that as for the permit, Respondent did apply for a permit for the work at Complainants’ residence and Respondent is still awaiting final approval by Maricopa County. Therefore, Respondent has substantially complied with the agreed upon term in the settlement agreement, i.e., that Respondent would apply for the appropriate permit for Complainants. Because neither Complainant appeared at hearing, Mr. Kelly’s testimony was undisputed. . CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §§ 32-1154 et. sec. and A.R.S. § 41-1092. 2. Based on the undisputed testimony of Mr. Kelly it is concluded that Respondent did substantially comply with the terms and conditions of the Decision and Order issued on June 11, 2008. Thus, it is appropriate, and warranted, that this matter be closed without discipline.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, finding substantial compliance by Respondent, it is hereby recommended that this matter be closed without discipline.

In the event of certification of this Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification.

Done this day, January 28, 2009.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] After the Office of Administrative Hearings (“OAH”) was advised on January 26, 2009 by the Registrar of Contractors that Complainant Del Toro had erroneously filed a Motion to Continue with the Registrar of Contractors, the undersigned ALJ issued an Order on the same day denying the Motion to Continue, no good cause appearing. Complainant Del Toro had also failed to notify Respondent of the request to continue. OAH records indicate that on the morning of January 28, 2009, Complainant Del Toro telephoned the OAH and was advised that his Motion to Continue was denied.

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