ALJDEC decisions subject to certification as final

2009A-100158135-ROC · Registrar of Contractors · 2011-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: February 16, 2011, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors appeared through Montgomery Lee, Esq., Assistant Attorney General; Respondent Five Stone Developments, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. Five Stone Developments, L.L.C. (“Respondent”) holds License No. 215652, a Class B license that the Registrar of Contractors (“the Registrar”) issued on January 14, 2006. Todd Stephen Cress appears as member on License No. 215652. Eric John Olsen appears as qualifying party and member on License No. 215652. 2. Respondent’s address of record is 7829 E. Riverdale, Mesa, AZ 85207. 3. On October 8, 2002, the Registrar issued License No. 178411, a Class B license to Olsen Custom Homes, L.L.C. Marv Raymond Byrd appears as member and Eric John Olsen appears as qualifying party and member on License No. 178411. 4. On July 28, 2008, pursuant to a Decision and Order in Case No. 07-2885, the Registrar suspended License No. 178411 issued to Olsen Custom Homes, L.L.C.. 5. On July 28, 2008, pursuant to a Decision and Order in Case No. 07-2885 for failure to pay a $500.00 civil penalty, the Registrar revoked License No. 178411 issued to Olsen Custom Homes, L.L.C.. 6. On August 12, 2008, pursuant to a Decision and Order in Case No. 08-0061, the Registrar revoked License No. 178411 issued to Olsen Custom Homes, L.L.C.. 7. On September 19, 2008, pursuant to a Decision and Order in Case No. M08-0209, the Registrar revoked License No. 178411 issued to Olsen Custom Homes, L.L.C.. 8. On or about February 6, 2009, the Registrar issued a Citation and Complaint in Case No. R09-0015 against Respondent that charged multiple violations of A.R.S. § 32-1154(A)(21) because Eric John Olsen was listed on both Respondent’s License No. 215652 and Olsen Custom Homes, L.L.C.’s revoked License No. 178411. 9. Respondent failed to file a timely written answer to the Citation and Complaint in Case No. R09-0015, and on June 30, 2009, the Registrar issued a Decision and Order revoking Respondent’s license forty days from the date of the order. 10. Respondent subsequently submitted a timely request for rehearing. The Registrar redesignated Case No. R09-0015 as Case No. 2009-[number redacted], granted Respondent’s request for rehearing under A.A.C. R4-9-120(C)(5), to be scheduled in the normal course of docketing, and referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. 11. On December 14, 2010, the Registrar issued a Notice of Rehearing in Case No. 2009-[number redacted], setting a hearing in the OAH on February 16, 2011, at 1:00 p.m. The Registrar sent a copy of the Notice of Rehearing to Respondent at its address of record. 12. Although the beginning of the duly noticed rehearing was delayed fifteen minutes to allow Respondent additional travel time, it did not appear, through a duly authorized member or attorney, and did not contact the OAH to request a continuance or that the time for the hearing be further delayed. Respondent did not present any evidence to defend its license. 13. The Registrar presented the testimony of its employee, Lisa Meadows, Legal Department Manager, and submitted five exhibits to establish the facts set forth above. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notice of Rehearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received the Notice of Rehearing. [2] The Registrar bears the burden of proof and must establish grounds for revocation of Respondent’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] The Registrar established cause to revoke Respondent’s license under A.R.S. § 32-1154(A)(21).[5] RECOMMENDED ORDER In light of the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, Respondent Five Stone Developments, L.L.C.’s License No. 215652, Class B be revoked. 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, March 3, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.”

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