ALJDEC decisions subject to certification as final

2016A-2000-ROC · Registrar of Contractors · 2016-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ross Aerial Equipment LLC,

COMPLAINANT,

v.

Zain Resources, LLC

DBA: Zain,

License No. A.290926-C,

RESPONDENT.

No. 2016A-2000-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 1, 2016, at 8:00 a.m.

APPEARANCES: Ross Aerial Equipment LLC (“Complainant”) failed to appear; Zain Resources, LLC DBA: Zain (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about September 18, 2014, the Arizona Registrar of Contractors (“the Registrar”) issued License No. A.290926-C for commercial general engineering to Respondent. Respondent’s address of record is 6901 E. Chauncey Ln. Apt. 1113, Phoenix, Arizona 85054-5110.

On or about June 9, 2016, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant a total of $22,229.93 for equipment that Complainant had supplied to three jobs in Flagstaff, Holbrook, and Mesa (“the projects”).

Complainant provided its address of record on its complaint as 5825 W. Van Buren St., Phoenix, Arizona 85043.

On July 25, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that that, in the time since Complainant filed the complaint with the Registrar, Respondent had paid Complainant $6,366.19 and $4,801.28 and that it was negotiating with Complainant to determine other amounts that were due for the projects. The written answer showed Respondent’s address of record.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

On August 9, 2016, the Registrar issued a Notice of Hearing, setting a hearing on October 6, 2016, at 10:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on the complaint and to Respondent at its address of record.

On October 5, 2016, Complainant filed a request that the hearing be continued because it had “reached a tentative payment agreement which should be completed on November 11, 2016,” and that it wanted “to ensure if [Respondent] does not follow through with this recent payment agreement, [Complainant] will be able to continue with the legal hearing process and have a new hearing date scheduled.” Complainant’s letterhead on the complaint showed the address on its complaint and that the request for continuance had been sent to Respondent at its address of record.

On October 6, 2016, the Administrative Law Judge issued an order continuing the hearing to December 1, 2016, at 8:00 a.m. Staff at OAH sent the October 6, 2016 order to Complainant at the address on its complaint and motion to continue and to Respondent at its address of record.

Neither party requested to appear telephonically at the continued hearing or requested that the hearing again be continued. Although the start of the duly noticed continued hearing was delayed fifteen minutes to allow the parties additional travel time, neither party appeared through a member, authorized employee, or attorney. Consequently, Complainant did not present any evidence to prosecute its complaint against Respondent.

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CONCLUSIONS OF LAW

This dispute lies within the Registrar’s jurisdiction to resolve.

Because the Notice of Hearing that the Registrar mailed and the order setting a continued hearing that OAH mailed to Complainant’s address on its complaint were reasonable, Complainant is deemed to have received notice of the continued hearing.

Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.

It appears from the record that Respondent has resolved Complainant’s complaint. In any event, Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to prosecute his 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 Registrar’s final order in this matter, Case No. 2016-2000 against Respondent

Zain Resources, LLC DBA: Zain’s License No. A.290926-C 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, December 2, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors