ALJDEC decisions subject to certification as final

2009A-49520859-ROC · Registrar of Contractors · 2012-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2012 APPEARANCES: Brian David Hedger failed to appear. Brock Development, L.L.C. was represented by its authorized representative, David Brock. 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. Brock Development, L.L.C. (“Respondent”) is the holder of License No. KB-2.224299-D issued by the Registrar of Contractors (“Registrar”). 2. Brian David Hedger, doing business as Brian Hedger Painting (“Complainant”), filed a written Complaint with the Registrar alleging nonpayment by Respondent to Complainant in the amount of $16,625.00. The Registrar designated the Complaint as Case No. 09-4952, but later re-designated the Complaint as Case No. 2009-49520859. 3. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (7) and (11). 4. On November 24, 2009, the Registrar issued a Default Decision and Order (“Order”) in the above-entitled matter because Respondent failed to timely file an Answer to the Citation and Complaint. The Order provided that Respondent’s contracting license would be suspended on the effective date of the Order and remain suspended until Respondent provided the Registrar with written proof that Respondent had paid Complainant the sum of $16,625.00. 5. On or about December 4, 2009, counsel for Respondent filed a Motion for Rehearing and Motion to Set Aside Default Decision and Order with the Registrar maintaining, among other things, that Respondent’s counsel, who had contacted the Registrar prior to the issuance of the Citation and Complaint, had not been sent a copy of the Citation and Complaint and the Order. 6. The Registrar issued an Order Granting Motion for Rehearing. The Registrar forwarded the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Rehearing that advised the parties of the time, date, and location of the formal rehearing. The Registrar sent the Notice of Hearing to the parties and counsel at their addresses of record with the Registrar. 8. The commencement of the rehearing was delayed 15 minutes to allow for the late arrival of Complainant or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the rehearing in Complainant’s absence. 9. By his failure to appear at the rehearing, Complainant failed to present any evidence to establish that Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (11), as charged in the Citation and Complaint issued by the Registrar. 10. At the rehearing, Respondent’s authorized representative, David Brock, informed the Administrative Law Judge that the parties did not reach a settlement in the matter. 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), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. By his failure to appear at the rehearing, Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (11), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. 2009-49520859, formerly 09- 4952, 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, January 24, 2012.

/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