ALJDEC decisions subject to certification as final

2015A-2903-ROC · Registrar of Contractors · 2016-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2, 2016, at 1:00 p.m. APPEARANCES: Miller Wholesale Lumber Co. (“Complainant”) failed to appear; Earth Stone Water LLC (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. CR21.265235-D and KA-5.279568 to Respondent. Respondent’s address of record is 4004 S. 30th St., Phoenix, Arizona 85040-8651. Complainant is a material supplier. On or about July 6, 2015, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant money for building materials that Respondent had used in three different projects. Complainant provided the address of 1700 S. Kachina Dr., Tempe, Arizona 85281 on the complaint that it filed with the Registrar. Complainant subsequently requested a hearing on its complaint against Respondent. The Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.[1] Respondent filed a timely written answer to the Citation and Complaint, disputing the amount owed. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On December 18, 2015, the Registrar issued a Notice of Hearing, setting a hearing on February 2, 2016, at 1:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint and to Respondent at its address of record. Neither party 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 thirty minutes to allow Complainant additional travel time, Complainant did not appear, personally or through 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 his 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 the address on Complainant’s complaint was reasonable, Complainant is deemed to have received notice of the hearing.[3] Complainant bears the burden of proof to establish a statutory violation 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)(10). / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Case No. 2015-2903 against Respondent Earth Stone Water LLC’s License Nos. CR21.265235-D and KA-5.279568 shall 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 five days from the date of that certification. Done this day, February 2, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(10) 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826