ALJDEC decisions subject to certification as final

2015A-3914-ROC · Registrar of Contractors · 2016-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2016, at 8:00 a.m. APPEARANCES: Hansen Trucking LLC (“Complainant”) failed to appear; C and W Son’s Enterprises Inc. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Between 1988 and 2009, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. KB-2.259990-D, CR57.077522-D, and CR57.077535-D to Respondent. Respondent’s address of record is P.O. Box 1024, Litchfield Park, Arizona 85340-1024. On or about September 15, 2015, two of Complainant’s employees filed a complaint with the Registrar that alleged that Respondent owed Complainant a total of $27,252.50 for trucking services that it had provided to various locations. The addresses that the employees provided for Complainant were 870 Desert Hollow Dr., San Tan Valley, Arizona 85143 and 290 E. Williams Field, Gilbert, Arizona 85295. Subsequently, Complainant requested a hearing on its complaint. On February 5, 2016, 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, stating that it had requested that Complainant provide trip tickets to support the amounts claimed to be owed and that it had received some but all of the requested trip tickets. Respondent pointed out that one of the invoices attached to the Complaint was made out to another company. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On March 14, 2016, the Registrar issued a Notice of Hearing, setting a hearing on April 19, 2016, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record and to both of the addresses on Complainant’s complaint. Respondent did not appear at the hearing. Neither party contacted the OAH to state that the matter had been resolved and Complainant did not withdraw the complaint that it had filed with the Registrar. Complainant also did not appear at the hearing. Complainant did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Complainant additional travel time, Complainant did not appear, through an authorized member or employee 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 its complaint against Respondent. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[2] Because the Notices of Hearing that the Registrar mailed to the two addresses on Complainant’s complaint were reasonable, Complainant is deemed to have received notice of the hearing.[3] Complainant bears the burden of proof to establish cause to suspend, revoke, or otherwise discipline Respondent’s contractor’s licenses 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. 2015-3914 against Respondent C and W Son’s Enterprises, Inc.’s License Nos. KB-2.259990-D, CR57.077522-D, and CR57.077535-D 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, April 19, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] This statutory subsection 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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