ALJDEC decisions subject to certification as final

2010A-308472951-ROC · Registrar of Contractors · 2011-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2011, at 1:00 p.m. APPEARANCES: Complainant Michael L. Garrett did not appear; Respondent Kurt Konrad Obermeier dba Kanmar Gutters appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In June 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC166101, Class K-5 for dual siding other than wood, gutters and downspouts to Kurt Konrad Obermeier doing business as (“dba”) Kanmar Gutters (“Respondent”). 2. On May 10, 2010, the Registrar received a complaint from Michael L. Garrett (“Complainant”), requesting that the Registrar require Respondent to reimburse $190.00 to Complainant for roof scuppers that Respondent allegedly had damaged when it installed header boxes and downspouts at Complainant’s residence. The mailing address that Complainant provided on the complaint form was P.O. Box 477, Saint David, Arizona 85630. 3. Complainant subsequently requested a hearing. Complainant did not provide a new address on the request for hearing. 4. On September 9, 2010, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108). 5. Respondent timely answered the Citation and Complaint, denying any violation. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. On December 8, 2010, the Registrar issued a Notice of Hearing, setting a hearing on February 1, 2011, at 1:00 p.m. 8. The Registrar mailed a copy of the Notice of Hearing to Complainant at P.O. Box 477, Saint David, AZ 85630-0477. 9. Respondent appeared for the duly noticed hearing. 10. Although the beginning of the hearing was delayed thirty minutes to allow Complainant additional travel time, he neither appeared, personally or through an attorney, contacted the Office of Administrative Hearings to request a continuance or that the start of the hearing be further delayed, nor presented any evidence to prosecute his complaint against Respondent. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainant at the address he provided was reasonable and he is deemed to have received it.[1] 2. Complainant bears the burden of proof and must establish Respondent’s statutory violation by a preponderance of the evidence.[2] 3. Complainant by failing to appear or to present any evidence at the duly noticed hearing has not borne his burden of proof to establish that Respondent violated A.R.S. § 32-1154(A)(3) (namely, A.A.C. R4-9-108).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, Michael L. Garrett’s complaint in Case No. 2010-[number redacted] against Kurt Konrad Obermeier dba Kanmar Gutters’ License No. ROC166101, Class K-5 be dismissed. 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 5 days from the date of that certification. Done this day, February 1, 2011.

/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). [3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” The rule cited was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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