ALJDEC decisions subject to certification as final

2011A-3564-ROC · Registrar of Contractors · 2012-01-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2011 APPEARANCES: Wendy Inman and Brad Pilla appeared personally, and they were represented by their attorney, Jonathan Levine, Esq. Neidhart Enterprises, Inc. was represented by its authorized representative, Charles Neidhart. ADMINISTRATIVE LAW JUDGE: Brian B. 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. Neidhart Enterprises, Inc. (“Respondent”) is the holder of License No. 031773 issued by the Registrar of Contractors (“Registrar”). 2. On June 20, 2011, Wendy Inman and Brad Pilla (“Complainants”) filed a written Complaint with the Registrar alleging numerous items of deficient workmanship by Respondent on a remodeling project at their residence located at 1812 W. Dixon Circle, Mesa, Arizona. The Registrar designated the Complaint as Case No. 2011-3564. 3. The Registrar issued a Citation and Complaint in Case No. 2011-3564 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, and (23). 4. The Registrar forwarded Case No. 2011-3564 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. At the commencement of the hearing, Complainants’ counsel announced that Complainants wanted to withdraw their Complaint. Respondent’s authorized representative objected to vacating the hearing arguing that it was a stall tactic by Complainants. Respondent wanted to proceed with the hearing on the merits. 6. Vacating a hearing is governed by the provisions of A.A.C. R2-19-111. The above-entitled matter is a contested case, not an appealable agency action. Therefore, Complainants cannot unilaterally vacate the hearing pursuant to A.A.C. R2-19-111(3). 7. Complainants’ request to vacate the hearing was denied by the Administrative Law Judge pursuant to A.A.C. R2-19-111(4). The Administrative Law Judge determined that to vacate the hearing at that stage would cause undue prejudice to Respondent. 8. Complainants failed to present any evidence to support the allegations contained in their Complaint and the charged violations in the Citation and Complaint. 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), Complainants have 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. A.A.C. R2-19-111(3) did not authorize Complainants to vacate the hearing because that provision applies to a withdrawal of an appeal. It does not apply to vacating a contested case. 4. Complainants’ request to vacate was denied by the Administrative Law Judge, pursuant to A.A.C. R2-19-111(4) because to have vacated it would have resulted in undue prejudice to Respondent. Respondent wanted to adjudicate the issues between the parties at the hearing and not be required to initiate arbitration that would require additional time to resolve the parties’ dispute. 5. By their failure to present any evidence at the hearing, Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23). RECOMMENDED ORDER The Citation and Complaint in Case No. 2011-3564 shall be dismissed on the effective date of the Order entered in the 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 9, 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