ALJDEC decisions subject to certification as final

2011A-2103-ROC · Registrar of Contractors · 2011-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19, 2011, at 1:00 p.m. APPEARANCES: Complainant Palo Verde Constructors did not appear; Respondent Cooper Bates, L.L.C. appeared through Gregg Peterson, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In August 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC187565, Class K-5 for dual soil stabilization and asphalt reclamation to P D Construction, Inc. doing business as (“dba”) Palo Verde Constructors (“Complainant”). Complainant’s address of record is P.O. Box 36496, Phoenix, Arizona 85067-6496. In August 2009, the Registrar issued License No. ROC258176, Class K-80 for dual sewers, drains, and pipe laying to Cooper Bates, L.L.C. (“Respondent”). On April 11, 2011, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent owed Complainant $7,500.00 for work that Complainant had performed at the Ak Chin Casino in Maricopa, Arizona (“the project”). Complainant provided its address of record on its complaint. On May 13, 2011, the Registrar received Complainant’s written request for hearing. Complainant’s letterhead provided its address of record. On June 29, 2011, the Registrar issued a Citation and Complaint against Respondent. Respondent filed a timely written answer to the Citation and Complaint, affirmatively alleging that it anticipated receiving payment on the project by August 15, 2011, and intended to pay Complainant. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On August 9, 2011, the Registrar issued a Notice of Hearing, setting a hearing on September 19, 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. Respondent’s representative appeared for the duly noticed hearing. Complainant did not request to appear telephonically at the 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 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 any statute. 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. 2011-2103 against Respondent Cooper Bates, L.L.C.’s License No. ROC258176 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, October 5, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge has amended the caption in this matter to show Complainant’s full legal name as shown on its contractor’s license, rather than simply the name shown on its complaint to the Registrar of Contractors.

[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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