ALJDEC decisions subject to certification as final

09F-4022-ROC · Registrar of Contractors · 2009-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 25, 2009 at 8:00 a.m. APPEARANCES: Neither party appeared. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On October 8, 2002, the Registrar of Contractors (“the Registrar”) issued License No. ROC178935, Class L-39 for commercial air conditioning and refrigeration to Complainant the G R A Z A K Corporation dba Swisher Heating and Air Conditioning, a corporation. On November 27, 2007, the Registrar issued License No. ROC239785, Class B- for commercial general contracting to Respondent Retail Store Construction Inc. dba K J K Retail Construction, a corporation. On January 21, 2009, the Registrar received a complaint against Respondent’s license from Complainant. The complaint alleged that Respondent had failed to pay Complainant $40,764.30 for work performed under a subcontract. Complainant provided its address on the complaint form as 21639 N. 14th Ave., Phoenix, AZ 85027, which is the same as Complainant’s address of record with the Registrar. The Registrar referred the complaint to Respondent for its immediate attention. On October 31, 2008, the Registrar received Complainant’s request that a citation be issued against Respondent’s license because it still had not received payment. On May 27, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(7),[1] (11),[2] and (15).[3] On June 11, 2009, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any statutory violation and affirmatively alleged that the property owner had not paid Respondent for Complainant’s work. The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. On July 29, 2009, the Registrar issued a Notice of Hearing, setting a hearing on September 25, 2009 at 8:00 a.m. at the Office of Administrative Hearings. The Registrar mailed a copy of the Notice of Hearing to Complainant at 21639 N. 14th Ave., Phoenix, AZ 85027. Although the Administrative Law Judge delayed the beginning of the hearing fifteen minutes to allow the parties additional travel time, neither party appeared or contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed. Complainant did not present any evidence to establish its complaint against Respondent. CONCLUSIONS OF LAW The dispute lies within the Registrar’s jurisdiction to resolve.[4] The Notice of Hearing that the Registrar mailed to Complainant at the address it provided on its complaint, which was the same as its address of record, was reasonable. Complainant is deemed to have received the Notice of Hearing.[5] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[6] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to support its claim precludes any finding of any statutory violation against Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order, the Registrar dismiss Case No. 09-4022 against Respondent Retail Store Construction Inc. dba K J K Retail Construction’s License No. ROC239785, Class B-01. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, September 25, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” [3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.” [4] See A.R.S. § 32-1101 et seq. [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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