ALJDEC decisions subject to certification as final

2011A-2031-ROC · Registrar of Contractors · 2012-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 10, 2012, at 8:15 a.m. APPEARANCES: Maxine Ratter did not appear. Steve Higgins Construction, Inc. was represented by its attorney, Tevis S. Reich, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Steve Higgins Construction, Inc. (“Respondent”) is the holder of License No. 115841, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. On April 5, 2011, Maxine Ratter (“Complainant”) filed a written Complaint with the Registrar alleging workmanship deficiencies by Respondent in the construction of a new residence located at 10 West Osage, Flagstaff, Arizona. The Registrar designated the Complaint as Case No. 2011-2031. 3. The Registrar issued a Citation and Complaint in Case No. 2011-2031 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (1), (2), and (3), namely A.A.C. R4-9-109. 4. The Registrar forwarded Case No. 2011-2031 to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing in Case No. 2011-2031 that advised the parties that an evidentiary hearing would be conducted on January 10, 2012, at 8:15 a.m. at the Registrar’s office in Kingman, Arizona. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. On December 28, 2011, the assigned Administrative Law Judge issued an Order Granting Change of Venue requested by Respondent. The venue for the hearing was changed from the Registrar’s office in Kingman to the Registrar’s office in Flagstaff. The December 28, 2011 Order changing venue was mailed to the parties at their addresses of record. 7. On January 5, 2012, the assigned Administrative Law Judge issued an Order Granting Complainant’s Request to Appear Telephonically at the Hearing. 8. On January 10, 2011, the commencement of the duly noticed formal hearing was delayed approximately one-half hour to allow for Complainant to place a call to the OAH or the late arrival of Complainant or an attorney authorized to represent her. The OAH’s staff placed four unblocked telephone calls to Complainant’s telephone number of record at the following times: 8:25 a.m.; 8:30 a.m.; 8:40 a.m.; and 8:46 a.m. Complainant did not answer those calls. Staff left a voice mail message with each telephone call. After the delay, the Administrative Law Judge conducted the hearing in Complainant’s absence. 9. By her failure to appear at the hearing, Complainant failed to present any evidence to support the allegations contained in her Complaint and the charged violations in the Registrar’s Citation and Complaint. 10. On January 11, 2012, the day after the duly noticed hearing, Complainant filed a request to reschedule the hearing. That request has been denied as untimely because the hearing has been concluded.

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. By her failure to appear at the scheduled hearing, Complainant failed to sustain her burden of proving that Respondent violated the charged provisions of A.R.S. § 32-1154(A) (1), (2), and (3), namely A.A.C. R4- 9-108. RECOMMENDED ORDER The Citation and Complaint in Case No. 2011-2031 shall be dismissed on the effective date of the Order entered in this matter. 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, January 26, 2012.

/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