ALJDEC decisions subject to certification as final

2010A-308477694-ROC · Registrar of Contractors · 2011-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2011, at 1:00 p.m. APPEARANCES: Complainant Countertop Creations, Inc. did not appear; Respondent J P Osborn Construction Managers, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In November 1997, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC128864, Class BE for store fixtures only to J P Osborn Construction Managers, Inc. (“Respondent”). In June 1998, the Registrar issued License No. ROC136035, Class L-60 for commercial finish carpentry to Countertop Creations, Inc. (“Complainant”). Complainant’s address of record is 170 East Corporate Place, Chandler, Arizona 85225-1018. In December 2010, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent owed Complainant $4,625.00 for work that Complainant had performed at 10749 North Scottsdale Road #103, in Scottsdale, Arizona (“the project”). Complainant provided its address of record on its complaint. On January 7, 2011, the Registrar received Complainant’s written request for hearing on its complaint. Complainant’s letterhead provided its address of record. On February 17, 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, admitting that it owed Complainant money for the project, and affirmatively alleging that it had sent Complainant $2,000.00, and that it needed time to pay the rest of its debt. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On May 2, 2011, the Registrar issued a Notice of Hearing, setting a hearing on June 29, 2011, at 1:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at its address of record. Complainant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Complainant did not appear, through an authorized officer, employee, 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.[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 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 in this matter, Case No. 2010-[number redacted] against Respondent J P Osborn Construction Managers, Inc.’s License No. ROC128864 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, July 14, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(11) 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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