ALJDEC decisions subject to certification as final

2015A-5034-ROC · Registrar of Contractors · 2016-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2016, at 1:00 p.m. APPEARANCES: L and I Floor Covering Inc. (“Complainant”) failed to appear; Wholesale Floors LLC (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. CR-8.245663-D, CR-5.260816-D, CR-5.271474-D, CR-5.299063-D, and CR-5.245662- D to Respondent. Respondent’s address of record with the Registrar is 8855 N. Black Canyon Hwy., Phoenix, AZ 85021-4107. The Registrar issued License No. CR-8.194777-D to Complainant. Complainant’s address of record is 42 N. Vineyard Ln., Litchfield Park, AZ 85340-5091. Complainant filed a complaint for nonpayment with the Registrar against Respondent. The address provided on the complaint was Complainant’s address of record. The Registrar subsequently received Complainant’s written request for hearing on the complaint. The Registrar issued a Citation for Alleged Violation of A.R.S. § 32- 1154(A)(10).[1] Respondent’s attorney filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that Complainant had failed to comply with project specifications. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on April 6, 2016, at 2:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant and Respondent at their addresses of record. Respondent’s attorney requested that the hearing be continued because he had recently been retained, he had a conflict with the hearing date, and the parties were exploring settlement. The Administrative Law Judge issued an order continuing the hearing to May 5, 2016, at 1:00 p.m. Staff at the OAH transmitted the order to Complainant’s address of record and to Respondent’s attorney. Respondent and its attorney did not appear at the continued hearing. Complainant also did not appear at the continued hearing, through an officer, employee, or attorney. 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] The order continuing the hearing that was sent to Complainant at its address of record was reasonable. Complainant is deemed to have received notice of the continued hearing.[3] Complainant bears the burden of proof and must establish statutory violations 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, Case No. 2015-5034 against Respondent Wholesale Floors LLC’s License Nos. CR-8.245663-D, CR-5.260816-D, CR-5.271474-D, CR-5.299063- D, and CR-5.245662-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, May 5, 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826