ALJDEC decisions subject to certification as final

2010A-308475070-ROC · Registrar of Contractors · 2011-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2011, at 1:00 p.m. APPEARANCES: Complainants Kurt and Bonnie Meinhausen did not appear; Respondent Payne and Sons Construction Corporation appeared through Steven Payne, its qualifying party and president. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In March 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC194202, Class K-42 for dual roofing to Payne and Sons Construction Corporation (“Respondent”). 2. On August 9, 2010, the Registrar received a complaint against Respondent from Kurt and Bonnie Meinhausen (“Complainants”) about a roof Respondent constructed on their house. The mailing address that Complainants provided on their complaint form was 9304 E. Olive Ln. N., Sun Lakes, Arizona 85248. 3. The Registrar’s inspector, Mark Alyea, performed a jobsite inspection and issued a Corrective Work Order (“CWO”) to Respondent on September 10, 2010. 4. Complainants subsequently requested a hearing. Complainants did not provide a new address on their request for hearing. 5. On November 22, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(23) and (3) (namely A.A.C. R4-9-108). 6. Respondent timely answered the Citation and Complaint, denying any violations and affirmatively alleging that it had performed all necessary corrections to Complainants’ roof and had complied with the CWO. 7. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 8. On February 8, 2011, the Registrar issued a Notice of Hearing, setting a hearing on April 4, 2011, at 1:00 p.m. at the OAH. 9. The Registrar mailed a copy of the Notice of Hearing to Complainants at 9304 E. Olive Ln. N., Sun Lakes, AZ 85248-6504. 10. Respondent’s representative appeared for the duly noticed hearing. 11. Complainants did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the hearing was delayed fifteen minutes to allow Complainants additional travel time, they did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Complainants did not present any evidence to prosecute their complaint. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainants at the address they provided was reasonable and they are deemed to have received it.[1] 2. Complainants bear the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[2] 3. Complainants, by failing to appear at the duly noticed hearing, have not borne their burden to establish that Respondent violated the charged statutes. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss Case No. 2010-[number redacted] against Respondent Payne and Sons Construction Corporation’s License No. ROC194202, Class K-42. 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, April 18, 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).

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