ALJDEC decisions subject to certification as final

2010A-308477184-ROC · Registrar of Contractors · 2011-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2011, at 8:00 a.m. APPEARANCES: Complainant Kinman Plumbing did not appear; Respondent E T W Group, Inc. appeared through Scott Geyer, its qualifying party and an officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In October 1999, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC140274, Class K-37 for dual plumbing to Jarrell Raymond Kinman doing business as Kinman Plumbing (“Complainant”). Complainant’s address of record is P.O. Box 340, Tonopah, Arizona 85354- 0340. In October 2000, the Registrar issued License No. ROC159640, Class B-1 for commercial general contracting to E T W Group, Inc. (“Respondent”). On November 18, 2010, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent owed Complainant $6,995.77 “plus extras,” for a total of $14,493.77 for work that Complainant had performed at 3265 Market Street, Gilbert, Arizona (“the project”). Complainant provided his address of record on his complaint. On December 2, 2010, the Registrar received Complainant’s written request for hearing on his complaint. Complainant’s letterhead provided his address of record. On January 4, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11).[1] Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that that it had paid Complainant’s material supplier $17,710.02 to remove a lien from the project. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On March 18, 2011, the Registrar issued a Notice of Hearing, setting a hearing on May 3, 2011, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at its address of record. Respondent’s representative appeared for the duly noticed hearing. Complainant 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 Complainant additional travel time, Complainant 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, Complainant did not present any evidence to prosecute his complaint against Respondent. 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 and must establish statutory violations by a preponderance of the evidence.[4] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to prosecute his 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 in this matter, Case No. 2010-[number redacted] against Respondent E T W Group, Inc.’s License No. ROC159640, Class B-1 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 17, 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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