ALJDEC decisions subject to certification as final

2008A-12803425-ROC · Registrar of Contractors · 2011-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2011

APPEARANCES: Jerry Grassi, Managing Member of Complainant, appeared on behalf of Complainant; no one appeared on behalf of Respondent.

WITNESSES: Jerry Grassi

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent is in compliance with a Default Decision and Order issued by the Registrar of Contractors. That Default Decision and Order required Respondent to satisfy the complaint filed by Complainant, which requested restitution. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On February 4, 2009, the Registrar of Contractors (“ROC”) issued a Default Decision and Order that gave Respondent 40 days to satisfy the complaint in this matter or have its license suspended. On March 3, 2009, the ROC suspended Respondent’s license for failure to comply with the Default Decision and Order (“Default Order”). Thereafter, Respondent contacted the ROC claiming that he was in compliance with the Default Order. Complainant disputed that claim. In March 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 are to present evidence as to “whether or not Respondent has complied with the terms of the [Default Order], absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent fully complied with the terms of the [Default Order], imposition of discipline shall immediately be lifted and the case be 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 Default 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 Default Order. FINDINGS OF FACT 1. Respondent is the holder of license C-11.219275-R, a specialty residential contracting license issued by the ROC. The license authorizes Respondent to perform electrical work for residential projects. Leonard Austin Winifred is Respondent’s sole corporate officer and Qualifying Party. The license currently remains on suspension for failure to comply with the Default Order. 2. Jerry Grassi testified at the compliance hearing and explained the complaint. He is the Managing Member of the Complainant company and testified that Complainant had to pay one of Respondent’s material suppliers for materials that Complainant had already paid Respondent for. The material supplier had placed a lien on Complainant’s property when Respondent did not pay for the materials. Grassi’s testimony is supported by the documentation in the record. 3. Respondent has filed letters with the ROC claiming that it complied with the Default Order by paying the material supplier directly after the Default Order was issued. However, Respondent did not appear at the hearing to support that claim. In addition, the payment should have been made to Complainant. Jerry Grassi testified that the material supplier still holds the lien on the property. 4. Complainant’s evidence is uncontested. 5. The evidence does not show that Respondent is in compliance with the Default Order. 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 it should be deemed to be in compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the ROC Default Order.[3] Respondent has failed to meet that burden. 2. As noted, the evidence does not show compliance with the Default Order. RECOMMENDED ORDER IT IS RECOMMENDED that license C-11.219275-R, held by Winifred Electric, Inc., continue in its present status because Respondent is not in compliance with the Default 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).

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

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