ALJDEC decisions subject to certification as final

2011A-3589-ROC · Registrar of Contractors · 2011-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 2011, at 8:00 a.m. APPEARANCES: Complainant Ingenious, L.L.C. dba Ingenious Remodeling did not appear; Respondent Extreme Electrical Services, L.L.C. appeared through Dwayne Lynch, its qualifying party, and Nathan Holtgrewe, its member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On December 6, 2010, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC269021, Class K-11 for dual electrical contracting to Extreme Electrical Services, L.L.C. (“Respondent”). 2. On December 14, 2010, the Registrar issued License No. ROC269987, Class B-3 for residential general remodeling and repair contracting to Ingenious, L.L.C. doing business as (“dba”) Ingenious Remodeling (“Complainant”). Complainant’s address of record is 4910 East Elliot Road, Suite 100, Phoenix, Arizona 85044-4316. 3. On or about June 21, 2011, the Registrar received Complainant’s complaint against Respondent, alleging that Respondent had performed electrical work at 2832 South George Drive, Tempe, Arizona, pursuant to its subcontract with Complainant between November 1, 2010, and December 6, 2010, before the Registrar issued its license, putting Complainant “in und[ue]… financial harm by doing so.” 4. Complainant provided its address of record as its mailing address on the complaint form. 5. Complainant subsequently submitted a written request that the Registrar issue a citation against Respondent. Complainant provided its address of record on the request for citation. 6. On August 4, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32- 1154(A)(20).[2] 7. Respondent filed a timely written answer to the Registrar’s Citation and Complaint, denying any violation. 8. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 9. On September 15, 2011, the Registrar issued a Notice of Hearing, setting a hearing at the OAH on November 3, 2011, at 8:00 a.m. 10. The Registrar mailed a copy of the Notice of Hearing to Complainant at its address of record, which it also provided on its complaint to the Registrar and on its request for citation. 11. Respondent’s representatives appeared for the duly noticed hearing. 12. Although the start of the hearing was delayed fifteen minutes to allow Complainant additional travel time, it did not request to appear telephonically, did not appear personally through an authorized employee, member, or attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to establish the allegations in its complaint to the Registrar against Respondent. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainant at its address of record, which was also the address that it provided on the complaint form and on its request for citation, was reasonable and it is deemed to have received notice of the hearing.[3] 2. Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statute by a preponderance of the evidence.[4] 3. Complainant by failing to appear at the duly noticed hearing has not borne its burden to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statute. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the complaint in Case No. 2011-3589 against Respondent Extreme Electrical Services, L.L.C.’s License No. ROC269021, Class K-11 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, November 10, 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 to conform Complainant’s name to the name on the Registrar of Contractors’ electronic license record for Complainant. [2] A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[s]ubsequent discovery of facts which if known at the time of issuance of a license or the renewal of the license would have been grounds to deny the issuance or renewal of the license.” [3] See A.R.S. §§ 41-1092.04 and 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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