Vacate

2014A-1507-ROC · Registrar of Contractors · 2014-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On May 5, 2014, the Arizona Registrar of Contractors (“the Registrar”) issued a Notice and Order Imposing § 32-1139(B) Suspension(s) (“Notice of Suspension”) against License No. KB-2-236568-D of Kent Barr LLC DBA Flooring Network (“Respondent”). According to the Notice of Suspension, on October 17, 2012, the Registrar’s Residential Contractors’ Recovery Fund (“the Fund”) paid a claim in the amount of $2,642.85 to Perri and Turee Toro, all of which was charged against the license of Theodore C. Wagner LLC DBA Canyon Creek Custom Interiors’ License No. 209829, thereby automatically suspending such license. According to the Notice, the date of the act or omission that led to the suspension of License No. 209829 was October 8, 2008, the Registrar’s records indicated that Theodore Charles Wagner was listed as qualifying party/ member and Rebecca Ann Wagner were listed as member on License No. 209829, and that the Registrar’s records also indicate that Theodore Charles Wagner was listed as owner/qualifying party, Kent Thomas Barr was listed as owner/ member, and Collette Thomas Barr was listed as owner/member on Respondent’s License No. 236568. The Notice was sent to Respondent’s address record. The Notice informed Respondent that it had thirty days to request in writing “an administrative hearing to show cause why this suspension should not be imposed.” Collette Barr filed a timely appeal and request for hearing on the Notice of Suspension on Respondent’s behalf. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On July 1, 2014, the Registrar issued a Notice of Hearing setting an evidentiary hearing before OAH on August 5, 2014. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Registrar’s attorney subsequently moved to continue the hearing. Respondent did not oppose the motion to continue. On August 4, 2014, the Administrative Law Judge (“ALJ”) issued an order continuing the hearing until September 18, 2014, at 8:00 a.m. OAH sent a copy of the order continuing the hearing to Respondent at its address of record. According to OAH’s electronic docket, on September 17, 2014, Respondent’s member Kent Barr communicated with OAH staff, as follows: Motion [from] Kent Bar LLC calling to advise they will not be able to attend tomorrow's hearing and are in need of a continuance as one of the parties is expecting a baby that is scheduled to be born sometime today / tomorrow and will not able to attend hearing advised him to file request in writing as soon as possible with copy to opposing side provided fax and [website] information.

Respondent did not file a motion in writing to continue the hearing, appear at the duly noticed continued hearing, even though the ALJ delayed the start of the hearing, or submit any evidence to show why its license should not be suspended under A.R.S. § 32-1139(B).[1] At the continued hearing, the ALJ shared Mr. Barr’s message with the Registrar’s attorney, John R. Tellier, Esq. Mr. Tellier noted that Respondent had three members, at least two of whom were available to attend the hearing, that according to Respondent’s license application, Respondent’s only female member, Collette Thomas Barr, was born in March 1960, making her 52 years old, probably too old to be pregnant, and that people generally know the due date for the birth of child much sooner than the day before the expected event. Because Respondent did not appear to present any evidence to show cause why its license should not be suspended, Mr. Tellier moved to vacate the hearing on the merits. Therefore, based on Respondent’s failure to appear at the duly noticed continued hearing or to present any evidence to establish cause why its license should not be suspended, IT IS ORDERED vacating the hearing on the merits that had been scheduled on September 18, 2014, at 8:00 a.m. IT IS FURTHER ORDERED remanding this matter under A.A.C. R2-19-111(3) to the Director of the Arizona Registrar of Contractors for further action. Done this day, October 1, 2014.

/s/ Diane Mihalsky Administrative Law Judge Copy mailed/e-mailed/faxed October 1, 2014 to: William A. Mundell, Director Registrar of Contractors c/o Legal Department 1700 W. Washington St., Suite 105 Phoenix, AZ 85007 Kent Barr LLC dba Flooring Network 4037 E. Garnet Cir. Mesa, AZ 85206-3266 John R. Tellier Esq. Office of the Attorney General 1275 W. Washington St. Phoenix, AZ 85007-2926

By J. Bacich ----------------------- [1] A.R.S. § 32-1139(B) provides as follows: If any amount is paid from the [Residential Contractors’ Recovery Fund (“the Fund”)] in settlement of a claim arising from the act, representation, transaction or conduct of a residential contractor, the license of the contractor shall be automatically suspended by operation of law until the amount paid from the fund is repaid in full, plus interest at the rate of ten per cent a year. Any person who is or was, at the time of the act or omission, named on a license that has been suspended because of a payment from the recovery fund is not eligible to receive a new license or retain another existing license that also shall be suspended by operation of law, nor shall any suspended license be reactivated, until the amount paid from the fund is repaid as provided in this subsection.

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