ALJDEC decisions subject to certification as final

2007A-112822-ROC · Registrar of Contractors · 2011-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2011

APPEARANCES: Complainant appeared by telephone on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Jesse Schreiner

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set by the Registrar of Contractors as a compliance hearing to determine whether Respondent is in compliance with a Decision and Order issued by the Registrar of Contractors. That Decision and Order required Respondent to perform corrective work. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On November 25, 2008, the Registrar of Contractors (“ROC”) issued a Decision and Order adopting an Administrative Law Judge Decision that gave Respondent 40 days to perform corrective work (or otherwise reach a financial settlement with Complainant) or have its license suspended. On January 26, 2009, Respondent’s license was suspended by the ROC due to failure to comply with the Decision and Order (“Order”). Thereafter, Respondent contacted the ROC claiming that he was in compliance with the Order, and Complainant disputed that claim. In February 2011, the ROC issued an order setting this case for a compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that the parties were to present evidence as to “whether or not Respondent has made sufficient attempts to fully comply with the terms set forth in the [Order]. If it is determined that Complainant has unreasonably refused attempts at settlement proposed by Respondent, then the suspension previously imposed shall be lifted, and this matter closed.” This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Order. Complainant presented brief testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that the evidence does not show Respondent to be in compliance with the Order. FINDINGS OF FACT 1. Respondent is the holder of license C-9.113231-R, a specialty residential contracting license issued by the ROC. The license authorizes Respondent to perform concrete work for residential projects. Michael B. Flink is Respondent’s sole proprietor and Qualifying Party. The license has been suspended since January 26, 2009, and also expired in April 2011 after one year of non-renewal. 2. Complainant testified at the compliance hearing and explained the condition of the work that was to be corrected by Respondent. The work still falls short of minimum workmanship standards. 3. Respondent has filed letters with the ROC claiming that he had attempted to comply with the Order but that Complainant was not being reasonable in accepting a monetary settlement. However, Respondent did not appear at the hearing to support that claim. 4. Complainant’s evidence is uncontested. 5. The evidence does not show that Complainant has been unreasonable. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Since Respondent has asserted that he should be deemed to be in compliance, Respondent bears the burden of showing, by a preponderance of evidence, that he has complied with the ROC Order.[3] Respondent has failed to meet that burden. 2. As noted, the evidence does not show compliance with the Order. RECOMMENDED ORDER IT IS RECOMMENDED that license C-9.113231-R, held by Michael Bradley Flink dba Concrete Custom Works, continue in its present status because Respondent is not in compliance with the Order.

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, June 7, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Arizona Administrative Code (A.A.C.) R2-19-119(B). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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