ALJDEC decisions subject to certification as final

2010A-23844457-ROC · Registrar of Contractors · 2010-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2010 at 8:00 a.m. APPEARANCES: Complainant David Higgins did not appear; Respondent Cesar Mazier Landscaping and Consulting, Inc. appeared through William R. Brown, Esq., William R. Brown, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On January 29, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC181959, Class C-21 for residential landscaping and irrigation systems to Respondent Cesar Mazier Landscaping and Consulting, Inc. 2. On January 11, 2010, the Registrar received Complainant David Higgins’ complaint against Respondent. The mailing address that Complainant provided on the complaint form was 5201 E. Grovers Ave., Scottsdale, Arizona 85254-7535. This was also the jobsite address. 3. The Registrar’s Inspector Scott Deering performed a jobsite inspection and issued a corrective work order to Respondent on February 16, 2010. 4. On March 9, 2010, Complainant requested that the Registrar issue a formal citation against Respondent. Complainant did not provide a new address. 5. On March 26, 2010, John F. Lohr, Jr., Esq. appeared on Complainant’s behalf. Mr. Lohr informed the Registrar that Complainant did not want Respondent to perform any corrective work because he did not think Respondent was competent. Mr. Lohr stated that Complainant would pursue a breach-of-contract claim against Respondent. 6. On May 20, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2), (3) (namely A.A.C. R4-9-108), (13) (namely A.R.S. § 1124(B)), and (23). 7. On June 4, 2010, Respondent filed a written answer to the Citation and Complaint, denying any violation. Respondent affirmatively alleged that Complainant would not allow Respondent to repair the pavers that it had installed and, instead, insisted that Respondent replace the pavers. 8. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. 9. On July 16, 2010, the Registrar issued a Notice of Hearing, setting a hearing on September 1, 2010 at 8:00 a.m. 10. The Registrar mailed copies of the Notice of Hearing to Complainant at the address on his complaint and to Complainant’s attorney, Mr. Lohr. 11. Respondent’s attorney appeared for the duly noticed hearing. 12. Although the beginning of the hearing was delayed fifteen minutes to allow Complainant additional travel time, he neither appeared, personally or through his attorney, nor contacted the Office of Administrative Hearings to request a continuance or that the start of the hearing be further delayed. Complainant did not present any evidence to establish his complaint against Respondent’s license. CONCLUSIONS OF LAW 1. The Notices of Hearing that the Registrar mailed to Complainant at the address he provided and to his attorney were reasonable and Complainant is deemed to have received notice of the hearing.[1] 2. Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] 3. Complainant by failing to appear at the duly noticed hearing has not borne his burden of proof to establish that Respondent violated the charged statutes. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss Case No. 2010-23844457 against Respondent Cesar Mazier Landscaping and Consulting, Inc.’s License No. ROC181959, Class C-21. 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, September 8, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See 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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