ALJDEC decisions subject to certification as final

2010A-308475373-ROC · Registrar of Contractors · 2011-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2011, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors appeared through Montgomery Lee, Esq., Assistant Attorney General; Respondent Rex Connlley Noll dba Noll Construction did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In August 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC188683, Class B-1 for commercial general contracting to Rex Connlley Noll doing business as (“dba”) Noll Construction (“Respondent”). Respondent’s address of record is 12471 South Frontage Road, Yuma, Arizona 85367-5601. On December 7, 2010, the Registrar issued a Citation and Complaint against Respondent, alleging the following: On or about November 2, 2009, the Industrial Commission of Arizona cited [Respondent] for failure to maintain workers’ compensation insurance and assessed [Respondent] with a $1,000 civil penalty. . . . On or about November 4, 2009, the Registrar informed [Respondent] that its failure to maintain workers’ compensation insurance could form a basis for a disciplinary sanction up to and including suspension or revocation of its contractor’s license. . . .

The Registrar stated that these facts provided cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1154(A)(4) and (13). Respondent filed a timely written answer to the Registrar’s Citation and Complaint. Respondent acknowledged that his workers’ compensation insurance had lapsed, but affirmatively alleged that he did not know that his insurance had lapsed until the Industrial Commission cited him, that he had always maintained workers’ compensation insurance before the lapse, and that he had paid the civil penalty and reinstated his workers’ compensation insurance. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On February 15, 2011, the Registrar issued a Notice of Hearing, setting a hearing before the OAH on May 23, 2011. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. A hearing was held on May 23, 2011. The Registrar presented the testimony of Bob Mechsner, its Chief of Licensing. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed thirty minutes to allow Respondent additional travel time, Respondent 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, Respondent did not present any evidence to defend his license. Mr. Mechsner pointed out that Respondent’s written answer to the Citation and Complaint admitted the charged violations but alleged that Respondent was only out of compliance with the statutes for one year, 2009, and that Respondent had complied with the laws governing workers’ compensation insurance for the six previous years. Mr. Mechsner testified that Respondent provided documentary proof that he had workers’ compensation insurance between August 2003, and November 2009. Mr. Mechsner testified that the Registrar’s policy was to revoke the licenses of contractors who never had workers’ compensation insurance but to impose lesser penalties on the licenses of contractors who previously purchased workers’ compensation insurance and allowed it to lapse. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notice of Hearing that the Registrar mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received the Notice of Hearing.[2] The Registrar bears the burden of proof and must establish cause to discipline Respondent’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] The Registrar established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(4)[5] and (13).[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Respondent Rex Connlley Noll dba Noll Construction’s License No. ROC188683 be suspended for ten days. It is further recommended that the Registrar not reinstate Respondent’s license until it provides satisfactory proof to the Registrar that he has paid the $1,000.00 civil penalty to the Industrial Commission of Arizona. It is further recommended that in addition to the license suspension, Respondent’s license be placed on disciplinary probation for a period of 180 days, commencing on the effective date of the Registrar’s order or the date on which Respondent files notice to the Registrar of having paid the $1,000.00 civil penalty to the Industrial Commission of Arizona, whichever is later. 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, June 6, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to comply with the statutes or rules governing social security, workers' compensation or unemployment insurance.” [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.”

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