ALJDEC decisions subject to certification as final

2010A-20505256-ROC · Registrar of Contractors · 2010-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2010 at 8:00 a.m. APPEARANCES: Complainant Tru Fit Cabinets, L.L.C. did not appear; Respondent Simmons Construction, L.L.C. appeared through Todd Simmons, Member and Qualifying Party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On August 22, 1996, the Registrar of Contractors (“the Registrar”) issued License No. ROC116892, Class B- for residential general contracting to Respondent Simmons Construction, L.L.C. On December 9, 2003, the Registrar issued License No. ROC191114, Class C-30 for residential finish carpentry to Complainant Tru Fit Cabinets, L.L.C. On July 29, 2007, the Registrar issued License No. ROC236244, Class K-61 for dual carpentry, remodeling and repairs to Complainant. Complainant’s address of record is 9827 N. 95th St., Ste. 105, Scottsdale, AZ 85258-4591. On December 3, 2009, the Registrar received a complaint against Respondent’s license from Complainant. The complaint alleged that Respondent had failed to pay Complainant $12,170.53 for work performed under a subcontract. Complainant provided its address of record on the complaint. On January 11, 2010, the Registrar received Complainant’s written request for hearing on its complaint. Complainant did not provide a new address. On March 25, 2010, the Registrar issued a Citation and Complaint against Respondent’s license, charging a violation of A.R.S. § 32-1154(A)(11).[1] Respondent filed a timely written answer to the Citation and Complaint denying any statutory violation and affirmatively alleging that Complainant’s work was incomplete and deficient. The Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, to schedule and to conduct a fair hearing. On May 25, 2010, the Registrar issued a Notice of Hearing, setting a hearing on July 12, 2010 at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at its address of record. On May 27, 2010, Respondent requested that the hearing be continued because its representative would be out of state on the date scheduled for hearing. Complainant did not respond to Respondent’s request. On June 7, 2010, the Administrative Law Judge continued the hearing to July 29, 2010 at 8:00 a.m. The OAH mailed a copy of the order continuing the hearing to Complainant at its address of record. Respondent’s representative appeared for the duly noticed continued hearing. Although the Administrative Law Judge delayed the beginning of the continued hearing for fifteen minutes to allow Complainant additional travel time, it did not appear or contact the OAH to request that the time for the hearing be further delayed. Complainant did not present any evidence to prosecute its complaint against Respondent. CONCLUSIONS OF LAW The dispute lies within the Registrar’s jurisdiction to resolve.[2] The Registrar’s Notice of Hearing and OAH’s order continuing the hearing were mailed to Complainant at its address of record, which is the only address that Complainant provided. Because these notices were reasonable, Complainant is deemed to have received notice of the continued hearing.[3] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[4] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to support its claim precludes a finding that Respondent violated A.R.S. § 32-1154(A)(11). 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. 2010-20505256 against Respondent Simmons Construction, L.L.C.’s License No. ROC116892, Class B-. 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, August 2, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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 . . . .” [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] 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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