ALJDEC decisions subject to certification as final

2011A-5209-ROC · Registrar of Contractors · 2012-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2012, at 1:00 p.m. APPEARANCES: Complainant Roybal Underground Utilities, L.L.C. did not appear; Respondent Gecko Trucking, L.L.C. dba Sparrgrove Underground Utilities and Excavating appeared through Barbara Sparrgrove, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In December 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. K-80.240679-D for dual sewers, drains, and pipe laying to Roybal Underground Utilities, L.L.C. (“Complainant”). Complainant’s address of record is 45313 West Portabello Road, Maricopa, Arizona 85139- 1750. Complainant’s qualifying party and member is Ray Daniel Roybal. In January 2010, the Registrar issued License No. A-12.261167-C for commercial sewers, drains, and pipe laying to Gecko Trucking, L.L.C. doing business as (“dba”) Sparrgrove Underground Utilities (“Respondent”). On September 12, 2011, the Registrar received a complaint against Respondent from Complainant. The complaint alleged that Respondent failed to pay two unauthorized charges on Complainant’s accounts for an underground utility project in Maricopa, Arizona (“the project”): (1) A charge in the amount of $160.00 from supplier Pipeline Services, Inc.; and (2) A charge in the amount of $1,110.00 from H D Supply Waterworks. Complainant provided its address of record on the complaint. On October 24, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. Respondent affirmatively alleged that Complainant authorized Respondent to purchase materials on its accounts, that the general contractor on the project, Danson Construction,[1] had paid H D Supply Waterworks’ $1,110.00 charge, and that Danson Construction would pay Pipeline Services, Inc.’s $160.00 charge from retention on the project. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On December 23, 2011, the Registrar issued a Notice of Hearing, setting a hearing on January 30, 2012, at 1:00 p.m. at the OAH. 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. According to the docket of the OAH, on January 30, 2012, at 11:50 a.m., Mr. Roybal in a telephone call informed OAH staff that he had an unspecified family emergency that required him to leave town and that he would not be available to appear personally or telephonically at the hearing. Mr. Roybal stated that if the hearing was not continued, Complainant “would then be in default.” Respondent’s qualifying party and member, Barbara Sparrgrove, appeared for the duly noticed hearing. Mr. Roybal did not request to appear telephonically at the hearing and did not request in writing that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Complainant additional travel time, it did not appear through an authorized member, 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. At the beginning of the hearing, the Administrative Law Judge denied on the record Respondent’s telephonic motion to continue because it was not in writing, was made less than fifteen days before the scheduled hearing, and failed to provide good cause for the continuance or for Complainant’s delay in requesting the continuance, contrary to the requirements of OAH’s procedural rules.[2] Ms. Sparrgrove testified that Complainant authorized the charges and submitted exhibits to establish that H D Supply Waterworks’ and Pipeline Services, Inc.’s charges had been paid. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[3] The Notice of Hearing that the Registrar mailed to Complainant’s address of record was reasonable.[4] It appears that Complainant received actual notice of the hearing. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[5] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[6] Complainant by failing to appear at the duly noticed hearing or to offer any evidence to prosecute its complaint failed to carry its burden to establish that Respondent violated A.R.S. § 32-1154(A)(11).[7] Respondent established that Complainant authorized the charges and that the charges that formed the basis of Complainant’s complaint had been paid, precluding any finding that Respondent failed to pay Complainant any monies in violation of 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. 2011-5209 against Respondent Gecko Trucking, L.L.C. dba Sparrgrove Underground Utilities and Excavating’s License No. A-12.261167-C 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, February 6, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] According to the Registrar’s website, Danson Construction, L.L.C. holds License No. KB-1.247197-D. [2] See A.A.C. R2-19-106(B), R2-19-106(C), and R2-19-110. [3] See A.R.S. § 32-1101 et seq. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] See A.A.C. R2-19-119(B)(2). [7] 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 . . . .”

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826