ALJDEC decisions subject to certification as final

2015A-605-ROC · Registrar of Contractors · 2015-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 30, 2015, at 8:00 a.m. APPEARANCES: Air-co Construction (“Complainant”) failed to appear; Riata Construction Inc. of Nevada (FN) (“Respondent”) was represented by Gary T. Doyle, Esq., Baumann Doyle Paytas & Bernstein. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.151616-D to Respondent. 2. Complainant’s owner and qualifying party filed a complaint with the Registrar that alleged that Respondent failed to pay Complainant for work that it had performed pursuant to a subcontract. Complainant provided its mailing address on the complaint form. 3. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent State agency, for an evidentiary hearing. 4. The Registrar issued a Notice of Hearing, setting a hearing on November 30, 2015, at 8:00 a.m. at the OAH. The Notice of Hearing advised Complainant that “[y]our attendance is required and you must be prepared to produce relevant and material testimony and evidence in support of your position” and that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 5. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint. 6. Although the start of the hearing was delayed more than twenty minutes, Complainant did not request to appear telephonically, did not appear personally through its owner and qualifying party or through an authorized attorney, and did not contact the OAH to request a continuance or 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 it is deemed to have received notice of the hearing.[1] 2. Complainant bears the burden of proof to establish that Respondent violated the charged provision of A.R.S. § 32-1154(A)(10) 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 Air-co Construction’s complaint in Case 2015-605 against Respondent Riata Construction Inc. of Nevada (FN)’s License No. KB-01.151616-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, November 30, 2015. /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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