ALJDEC decisions subject to certification as final

2011A-5079-ROC · Registrar of Contractors · 2013-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: January 11, 2013, at 8:00 a.m. APPEARANCES: Complainant 3 C Electric Inc. did not appear; Respondent B 5 Inc. dba Spectrum appeared through Christopher John Brown, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On September 3, 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-1.199689-C to B 5 Inc. dba Spectrum (“Respondent”). Christopher John Brown is the only person listed on Respondent’s license. 2. On May 28, 2010, the Registrar issued License No. L-11.264427-C to 3 C Electric Inc. (“Complainant”). The persons listed on Complainant’s license are Mr. Brown and Donald Lee Cross, Jr. 3. Complainant’s address of record is 1930 East Brown Road, Suite 103, Mesa, AZ 85203-5139. According to the Registrar’s public website, the Registrar revoked Complainant’s license on May 8, 2012. 4. On or about September 2, 2011, Mr. Cross, on Complainant’s behalf, filed a Complaint against Respondent with the Registrar alleging that Respondent had defrauded Complainant and Mr. Cross by taking control of Complainant’s finances, misappropriating monies, and failing to pay Complainant’s suppliers. Complainant provided its address on the Complaint as 41674 North Vargas Drive, Queen Creek, AZ 85240. 5. The Registrar issued a Citation and Complaint, charging Respondent with a possible violation of A.R.S. § 32-1154(A)(11).[1] After Respondent failed to file a timely written answer to the Citation and Complaint, the Registrar issued a Decision and Order deeming Respondent to have admitted the charges contained in the Citation and Complaint pursuant to A.R.S. § 32-1155(B) and suspending Respondent’s license until it paid the $215,000.00 that Complainant claimed Respondent owed in the Complaint. 6. The Registrar’s October 31, 2012 Order Granting Request for Rehearing provided as follows: On May 24, 2012, Respondent submitted a timely Request for Rehearing in this matter with the Registrar providing, among other things, that Respondent never received the Citation and Complaint because it had been sent to the wrong address and that the Registrar’s May 16, 2012 Default Decision and Order is not justified by the evidence.

On June 8, 2012, the Registrar provided Complainant with an opportunity to submit a written response to Respondent`s Request for Rehearing. As of this date, no response has been received.

On or about September 20, 2012, Respondent submitted a second Request for Rehearing in this matter with the Registrar providing, among other things, that the Complaint does not contain an amount alleged by Complainant to be due and owing by Respondent nor did Complainant provide any documents to support Complainant’s allegation that Respondent owes any monies to Complainant.

On September 26, 2012, the Registrar provided Complainant with an opportunity to submit a written response to Respondent`s second Request for Rehearing. As of this date, no response has been received.

Upon review and consideration of Respondent’s Requests for Rehearing, as well as the entire record in this matter, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Rehearing be GRANTED in accordance with A.A.C. R4-9- 120(C)(7).

IT IS FURTHER ORDERED that a Full Rehearing be scheduled in the normal course of docketing in the Phoenix area. A Notice of Full Rehearing will be issued in due course.

7. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent State agency, to conduct a full rehearing at which the parties could submit evidence. 8. The Registrar issued a Notice of Rehearing, setting a rehearing on January 11, 2013, at 8:00 a.m. at the OAH. The Registrar sent copies of the Notice of Rehearing to Complainant at its address of record and at the address that it provided on the Complaint. 9. Complainant did not request to appear telephonically at the rehearing and did not request that the rehearing be continued. Although the start of the duly noticed rehearing was delayed fifteen minutes to allow Complainant additional travel time, Complainant did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the rehearing be further delayed. Consequently, Complainant did not present any evidence to establish the facts alleged in its Complaint. CONCLUSIONS OF LAW 1. The Notice of Rehearing that the Registrar mailed to Complainant at its address of record and at the address that it provided on the Complaint was reasonable and it is deemed to have received notice of the rehearing.[2] 2. Complainant bears the burden of proof to establish that Respondent violated the charged provision of A.R.S. § 32-1154(A)(11) by a preponderance of the evidence.[3] 3. Complainant by failing to appear or to present any evidence at the duly noticed rehearing failed to sustain its burden to establish that Respondent violated the charged statute. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar dismiss Complainant 3 C Electric Inc.’s Complaint in Case 2011-5079 against Respondent B 5 Inc. dba Spectrum’s License No. B-1.199689-C. 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 11, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(11) 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 or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” [2] See A.R.S. §§ 41-1092.04 and 41-1092.05(D). [3] 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, 838 (1952).

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