ALJDEC decisions subject to certification as final

2011A-1773-ROC · Registrar of Contractors · 2011-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2011 APPEARANCES: Sunrise Nursery, L.L.C. was represented by its authorized representative, Olinda Aguirre. Marjorie Ann Andrews, doing business as Extreme Landscape and Maintenance, did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Marjorie Ann Andrews, doing business as Extreme Landscape and Maintenance (“Respondent”), is the holder of License No. 216498, a Class A-21 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On March 24, 2011, Sunrise Nursery, L.L.C. (“Complainant”) filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $12,279.85 for landscaping materials supplied to Respondent by Complainant. The Registrar designated the Complaint as Case No. 2011-1773. 3. The Registrar issued a Citation and Complaint in Case No. 2011-1773 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (11). 4. The Registrar forwarded Case No. 2011-1773 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing in Case No. 2011-1773 that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. On October 14, 2011, Respondent filed a motion to continue the hearing scheduled for October 26, 2011, due to an unexplained medical issue. On October 19, 2011, Respondent’s motion to continue was denied. The parties were advised of the ruling in an Order Denying Continuance sent to them by first class mail and email. 7. On October 25, 2010, Respondent filed another request to continue the scheduled hearing due to her daughter’s diabetes. On October 25, 2011, the Administrative Law Judge issued an Order Denying Continuance that was sent to the parties by first class mail and by email. That order permitted Respondent to appear telephonically at the scheduled hearing. 8. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent, either in person or telephonically, or an attorney authorized to represent her. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. On April 16, 2010, Respondent’s agent, Dan Andrews, entered into an agreement with Complainant for a payment schedule of $300.00 per month until the total balance owed was paid. Respondent or her agent made one payment of $300.00 to Complainant on September 3, 2010. 10. The evidence of record established that Respondent owes Complainant the sum of $11,979.85. 11. A review of the Registrar’s official electronic licensing records reveals that Respondent’s contracting license is current. There are four open complaints against Respondent’s contracting license. Those records also list one disciplined complaint and three resolved/settled/withdrawn complaints against Respondent’s contracting license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent owes Complainant the sum of $11,979.85. RECOMMENDED ORDER Respondent’s License No. 216498 shall be revoked on the effective date of the Order entered in Case No. 2011-1773. If Respondent provides written proof to the Registrar that Respondent has paid Complainant the sum of $11,979.85 on or before the effective date of the Order entered in Case No. 2011-1773, and the Registrar approves the proof of payment, then the above-provided license revocation shall not take place, but instead Respondent’s contracting license shall be placed on disciplinary probation for a period of 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2011-1773. 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, November 15, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826