ALJDEC decisions subject to certification as final

2011A-136-ROC · Registrar of Contractors · 2011-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 30, 2011, at 1:00 p.m. APPEARANCES: Complainant City of Scottsdale did not appear; Respondent Mountain Shadows Custom Homes, L.L.C. appeared through Richard Fisch, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In September 1993, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC099022, Class B for residential general contracting to Mountain Shadows Custom Homes, L.L.C. (“Respondent”). In April 2010, the Registrar issued License No. ROC264943, Class B-2 for small commercial general contracting to Respondent. On January 7, 2011, the Registrar received complaints against both of Respondent’s licenses from Linda Morford of the City of Scottsdale, Arizona (“Complainant”). The complaints alleged that Respondent had failed to pay $3,525.61 that it owed to Complainant under Scottsdale City Ordinance Section 320 of the Transaction and Use Tax Code. The Registrar designated the complaint against License No. ROC099022 as Case No. 2011-134, and the complaint against License No. ROC264943 as Case No. 2011-136. Complainant provided its address on both complaints as 7447 East Indian School Road, Scottsdale, Arizona 85251. On January 20, 2011, the Registrar received Complainant’s written request for hearing on both complaints. Complainant’s letterhead showed the same address that it provided on the complaints. On February 17, 2011, the Registrar issued a Citation and Complaint against Respondent in both matters, charging violations of A.R.S. § 32- 1154(A)(5).[1] Respondent filed a timely written answer to the Citation and Complaint in Case No. 2011-134, admitting that it had not paid transaction and use taxes that it owed to the City of Scottsdale due to cash flow problems, and affirmatively alleging that it was trying to pay all monies owed. Respondent also filed a timely written answer to the Citation and Complaint in Case No. 2011-136, denying any statutory violation and affirmatively alleging that it had not incurred any tax liabilities to Complainant under its commercial license. The Registrar referred the matters to the Office of Administrative Hearings (“the OAH”), an independent state agency, for a consolidated evidentiary hearing. On May 2, 2011, the Registrar issued a Notice of Hearing in both matters, setting a consolidated hearing on June 30, 2011, at 1:00 p.m. at the OAH. The Registrar mailed copies of the Notices of Hearing to Complainant at the address provided on the complaints and requests for hearing. Respondent’s representative appeared for the duly noticed consolidated hearing. Complainant did not request to appear telephonically at the consolidated 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 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 complaints against Respondent’s licenses. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[2] Because the Notices of Hearing that the Registrar mailed to the address that Complainant provided on the complaints and requests for hearing were reasonable, Complainant is deemed to have received notice of the consolidated 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 consolidated hearing or to offer any evidence to prosecute its complaints precludes a finding that Respondent violated A.R.S. § 32-1154(A)(5) in the operation of its business under either of its licenses. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in these consolidated matters, Case No. 2011- 134 against Respondent Mountain Shadows Custom Homes, L.L.C.’s License No. ROC099022 be dismissed. It is further recommended that on the effective date of the Registrar’s final order in these consolidated matters, Case No. 2011-136 against Respondent Mountain Shadows Custom Homes, L.L.C.’s License No. ROC264943 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 18, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(5) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to pay income taxes, withholding taxes or any tax imposed by title 42, chapter 5, articles 1 and 4 and incurred in the operation of the licensed business.” [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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