ALJDEC decisions subject to certification as final

2010A-308475408-ROC · Registrar of Contractors · 2011-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2011, at 8:00 a.m. APPEARANCES: Complainant Farmington Glen Home Owners Association did not appear; Respondent Mike’s Mower & More, Inc. dba Arizona’s Best Maintenance appeared through Susan Lucia Gibson, its qualifying party and an officer, and Timothy Michael Gibson, an officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In October 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC200793, Class A-21 for commercial landscaping to Mike’s Mower & More, Inc., doing business as (“dba”) Arizona’s Best Maintenance (“Respondent”). 2. On August 24, 2010, the Registrar received a complaint against Respondent from Farmington Glen Home Owners Association (“Complainant”). The mailing address that Complainant provided on the complaint form was 10141 West Luxton Lane, Tolleson, Arizona 85353. This was also the jobsite address. 3. The Registrar’s inspector, Craig Williams, performed a jobsite inspection and on October 22, 2010, sent a letter to the parties informing them that he was unable to substantiate that Respondent had committed the misconduct that Complainant alleged in its complaint to the Registrar. 4. Complainant subsequently requested a hearing. Complainant did not provide a new address on the request for hearing. 5. On November 30, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 6. Respondent filed a timely written answer to the Registrar’s Citation and Complaint, denying any violations. 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 23, 2011, the Registrar issued a Notice of Hearing, setting a hearing on April 13, 2010, at 8:00 a.m. 9. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint to the Registrar. 10. Respondent’s representatives and witnesses appeared for the duly noticed hearing. 11. Although the start of the hearing was delayed fifteen minutes to allow Complainant additional travel time, it did not request to appear telephonically, did not appear through an authorized representative or attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Complainant did not present any evidence to establish the allegations in its complaint to the Registrar against Respondent. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainant at the address that it provided was reasonable and it is deemed to have received notice of the hearing.[1] 2. Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statutes by a preponderance of the evidence.[2] 3. Complainant by failing to appear at the duly noticed hearing has not borne its burden to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statutes. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, that the complaint in Case No. 2010- [number redacted] against Respondent Mike’s Mower & More, Inc. dba Arizona’s Best Maintenance’s License No. ROC200793, Class A-21 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 40 days from the date of that certification. Done this day, May 2, 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 and 41-1092.05(D). [2] 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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