ALJDEC decisions subject to certification as final

08F-L0208-ROC · Registrar of Contractors · 2009-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2009 APPEARANCES: Patrick and Lynette Tubb did not appear. Heritage Homes Construction, Ltd. was represented by its president and qualifying party, Wayne Guiliani. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Heritage Homes Construction, Ltd. (“Respondent”) is the holder of License No. 089954, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 26, 2007, Patrick and Lynette Tubb (“Complainants”) filed a written Complaint with the Registrar alleging numerous workmanship deficiencies by Respondent in the construction of their residence located at 2730, Castaway Drive, Lake Havasu City, Arizona. The Registrar designated Complainants’ Complaint as Case No. L08-0208. 3. The Registrar issued a Citation and Complaint in Case No. L08-0208 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. L08-0208 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing in Case No. L08-0208 advising the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. Complainants filed a motion to continue the scheduled hearing because they were in California and they did not plan to return to Arizona for months. The Administrative Law Judge denied Complainants’ motion to continue. Complainants were informed that they could apply to appear telephonically at the hearing, but they did not request to do so. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Complainants or an attorney authorized to represent them. After the delay, the Administrative Law Judge conducted the hearing in Complainants’ absence. 8. By their failure to appear at the hearing, Complainants failed to present any evidence to support the allegations contained in their Complaint, as charged in the Citation and Complaint issued by the Registrar. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. By their failure to appear at the hearing, Complainants failed to sustain their burden of proving the allegations contained in their Complaint, as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint issued in Case No. L08-0208 shall be dismissed on the effective date of the Order entered in this matter. 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 40 days from the date of that certification.

Done this day, November 18, 2009.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

-----------------------

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