ALJDEC decisions subject to certification as final

2010A-308477423-ROC · Registrar of Contractors · 2011-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2011, at 8:00 a.m. APPEARANCES: Complainant Specialized Surfacing Utility Paving and Construction, L.L.C. did not appear; Respondent Material Delivery, Inc. appeared through Michael Denny, an officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In November 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC105034, Class A for commercial general engineering to Specialized Surfacing Utility Paving and Construction, L.L.C. (“Complainant”). Complainant’s address of record is 21257 North Black Canyon Highway, Phoenix, Arizona 85027-2511. In November 2006, the Registrar issued License No. ROC226726, Class A for commercial general engineering to Material Delivery, Inc. (“Respondent”). On or about December 2, 2010, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent owed Complainant $1,425.00 for asphalt paving at the Maricopa County Bar Association property at 303 East Palm Lane, Phoenix, Arizona. Complainant provided its attorney’s name and address on the complaint form. On December 17, 2010, Complainant requested that the Registrar issue a citation against Respondent. The address on the letterhead was Complainant’s address of record. On January 5, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(11)[1] and (13), namely A.R.S. § 32-1124(B).[2] Respondent filed a timely written answer to the Citation and Complaint. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On March 24, 2011, the Registrar issued a Notice of Hearing, setting a hearing on May 12, 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 and to its attorney at the address provided. 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 fifteen minutes to allow Complainant additional travel time, Complainant did not appear, through an authorized representative or 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 its complaint against Respondent. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[3] Because the Notice of Hearing that the Registrar mailed to Complainant’s address of record and to Complainant’s attorney was reasonable, Complainant is deemed to have received notice of the hearing.[4] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[5] 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) or (13). 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 Material Delivery, Inc.’s License No. ROC226726, Class A 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 23, 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] 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.” A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’” on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [3] See A.R.S. § 32-1101 et seq. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] 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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