ALJDEC decisions subject to certification as final

2010A-3553528-ROC · Registrar of Contractors · 2010-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2010 at 1:00 p.m. APPEARANCES: Complainant Lois Berkowitz did not appear; Respondent Oracle Ridge Contracting, L.L.C. appeared through Mark E. Hartwig, its qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On August 9, 2009, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC257966, Class C37R for residential plumbing, excluding solar, to Respondent Oracle Ridge Contracting, L.L.C., doing business as Oracle Ridge Plumbing. 2. On January 25, 2010, the Registrar received Complainant Lois Berkowitz’ complaint against Respondent. The mailing address that Complainant provided on the complaint form was 2170 E. Romero Canyon Dr., Oro Valley, Arizona 85755-4712. This jobsite address was 12211 N. Cloud Ridge Dr., Oro Valley, Arizona 85755. 3. The Registrar’s inspector, Walter Grochocki, performed a jobsite inspection. On February 26, 2010, Inspector Grochocki issued a Corrective Work Order to Respondent. 4. Complainant subsequently requested a hearing. 5. On May 27, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(1), (3) (namely A.A.C. R4-9-108), and (23). 6. Respondent filed a timely written answer to the Citation and Complaint, denying any violations. 7. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, to schedule and to conduct a fair hearing. 8. On July 14, 2010, the Registrar issued a Notice of Hearing, setting a hearing on August 26, 2010 at 1:00 p.m. The Registrar mailed the Notice of Hearing to Complainant at the address she provided on her complaint. 9. On August 24, 2010, the OAH received a facsimile from Complainant in which she requested to appear telephonically at the hearing because “Complainant does not trust appearing in the same location as Respondent, whose son/partner verbally threatened Complainant today (24 Aug 2010) through his car window (‘you better watch out’).”[1] 10. On August 24, 2010, the Administrative Law Judge denied Complainant’s motion to appear telephonically and informed her that, “[i]f Complainant fails to appear personally for the hearing, her failure will be treated as a default and the matter will proceed in her absence.” The order was e-mailed to Complainant at the e-mail address that she provided on her complaint form. 11. Respondent’s qualifying party appeared for the duly noticed hearing. 12. Although the beginning of the hearing was delayed thirty minutes to allow Complainant additional travel time, she did not appear, personally or through an attorney, or contact the Office of Administrative Hearings to request a continuance or that the start of the hearing be further delayed. Complainant did not present any evidence to prosecute her complaint against Respondent. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainant at the address that she provided on her complaint was reasonable, and it appears that she actually received the Notice of Hearing.[2] 2. Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[3] 3. Complainant by failing to appear at the duly noticed hearing has not borne her burden of proof to establish that Respondent violated any of the charged statutes. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss Case No. 2010-3553528 against Respondent Oracle Ridge Contracting, L.L.C.’s License No. ROC257966, Class C37R. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, September 8, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Complainant also provided a new address, which was the jobsite address.

[2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See 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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