ALJDEC decisions subject to certification as final

2015A-2479-ROC · Registrar of Contractors · 2016-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2016, at 8:00 a.m. APPEARANCES: Ablaze Heating and Cooling Specialists Inc. (“Complainant”) failed to appear; Pioneer Plumbing, Heating & Cooling Inc. (“Respondent”) appeared through Michael Motzkin, President, Donald Holsten, Construction Manager, and Jim Foster, General Manager. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. R37R.083959-R, C-37.083978-C, C-39.301048-C, and CR61.278209-D to Respondent. 2. Complainant filed a complaint against Respondent with the Registrar. Complainant provided its mailing address on the complaint form. 3. After Complainant requested a hearing, the Registrar issued a Citation, charging cause to suspend, revoke, or otherwise discipline Respondent’s licenses under A.R.S. § 32-1154(A)(6). Respondent filed a timely written answer to the Citation, denying any violation. 4. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent State agency, for an evidentiary hearing. 5. On March 2, 2016, the Registrar issued a Notice of Hearing, setting a telephonic hearing on May 5, 2016, at 8:00 a.m. at the Registrar’s Tucson office. The Notice of Hearing advised Complainant that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 6. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint. 7. Complainant did not request to appear telephonically or that the hearing be continued. Although the start of the hearing was delayed seventeen minutes, Complainant did not appear through an authorized officer or employee or an 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 to the Registrar against Respondent. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainant at the address that it provided was reasonable and he is deemed to have received notice of the hearing.[1] 2. Complainant bears the burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154(A) by a preponderance of the evidence.[2] 3. Complainant by failing to appear or to present any evidence at the duly noticed hearing failed to meet 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 final order, the Registrar dismiss Complainant Ablaze Heating & Cooling Specialists, Inc.’s complaint in Case 2015-2479 against Respondent Pioneer Plumbing, Heating & Cooling, Inc.’s License Nos. R37R.083959-R, C- 37.083978-C, C-39.301048-C, and CR61.278209-D. 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 five days from the date of that certification. Done this day, May 5, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04 and 41-1092.05(D). [2] 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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