ALJDEC decisions subject to certification as final

2010A-308476400-ROC · Registrar of Contractors · 2011-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2011, at 8:00 a.m. APPEARANCES: Neither party appeared. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In January 1996, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC111181, Class B-2 for general small commercial contracting to Fairbank’s Contracting and Development, L.L.C. (“Respondent”). Respondent’s address of record is 175 South Hamilton Place, Building 1, Suite 101, Gilbert, Arizona 85233-5508. In July 2006, the Registrar issued License Nos. ROC221825, Class K-48 for dual ceramic, plastic, and metal tile, and ROC221826, Class K-8 for dual floor covering to Mountain View Flooring, L.L.C. (“Complainant”). Complainant’s address of record is P.O. Box 322, Buckeye, Arizona 85326- 0026. In October 2010, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent owed Complainant $3,487.50 for work that Complainant had performed at 15015 North Scottsdale Road, Scottsdale, Arizona (“the project”). Complainant provided its address of record on the complaint. On June 11, 2011, the Registrar received Complainant’s written request that its complaint be reopened and set for hearing. Complainant’s letterhead provided its address of record. On July 18, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11).[1] The Registrar sent a copy of the Citation and Complaint to Respondent at its address of record. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that it had not been paid on the project and that it had offered to make payments to Complainant. Respondent’s letterhead provided its address of record. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On August 22, 2011, the Registrar issued a Notice of Hearing, setting a hearing on September 30, 2011, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to both parties at their addresses of record. Neither party requested to appear telephonically at the hearing or to continue the hearing. Although the start of the duly noticed hearing was delayed fifteen minutes to allow both parties additional travel time, neither party appeared, personally or through a member, an employee, or an attorney. Consequently, Complainant did not present any evidence to prosecute its complaint against Respondent. The record of the OAH does not contain any unequivocal evidence that the parties settled their dispute. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[2] Because the Notice of Hearing that the Registrar mailed to Complainant’s address of record was reasonable, Complainant is deemed to have received notice of the hearing.[3] Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[4] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to prosecute its complaint precludes a finding that Respondent violated A.R.S. § 32-1154(A)(11). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Case No. 2010-[number redacted] against Respondent Fairbank’s Contracting and Development, L.L.C.’s License No. ROC111181, Class B-2 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, October 18, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] 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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