ALJDEC decisions subject to certification as final

2011A-4789-ROC · Registrar of Contractors · 2012-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2012, at 8:15 a.m. APPEARANCES: Complainant Grady’s Quality Excavating, Inc. did not appear; Respondent Red Road Construction, L.L.C. appeared through Todd Smith, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In April 2000, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KA.154334-D for dual engineering to Grady’s Quality Excavating, Inc. (“Complainant”). Complainant’s address of record is 14785 East White Drive, Dewey, Arizona 86327-6748. In June 2008, the Registrar issued License No. KA.246668-D for dual engineering to Red Road Construction, L.L.C. (“Respondent”). On August 17, 2011, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent owed Complainant $3,825.00 for paving that Complainant had performed at a project at 488 Hualapai Way, Peach Springs, Arizona (“the project”). Complainant provided its address of record on its complaint. On September 19, 2011, the Registrar received Complainant’s written request for hearing on its complaint. Complainant’s letterhead provided its address of record. On October 27, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11).[1] Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On December 5, 2011, the Registrar issued a Notice of Hearing, setting a videoconference hearing on January 23, 2012, at 8:15 a.m. from the Registrar’s Flagstaff office at 2901 Shamrell Boulevard, Suite 100, Flagstaff, Arizona. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 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 and did not conclude for another fifteen minutes, Complainant did not appear through an officer, authorized employee, or attorney, and did not contact the OAH or the Registrar 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 to 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 A.R.S. § 32-1154(A)(11). 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. 2011-4789 against Respondent Red Road Construction, L.L.C.’s License No. KA.246668-D 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, January 23, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” [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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