ALJDEC decisions subject to certification as final
2017A-162-NPC-ROC · Registrar of Contractors · 2017-05-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Neff Rental LLC,
COMPLAINANT,
v.
Donald Lee Thompson dba,
Thompson Development Companies,
License No: 274213
RESPONDENT.
No. 2017A-162-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 5, 2017, at 8:30 a.m.
APPEARANCES: Neff Rental LLC (“Complainant”) failed to appear; Donald Lee Thompson dba, Thompson Development Companies (“Respondent”) appeared on his own behalf.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
In October 2011, the Registrar of Contractors (“the Registrar”) issued License No. ROC274213 Respondent.
On January 9, 2017, Complainant filed a complaint with the Registrar, alleging that Respondent had failed to pay Complainant $10,514.11 on a rental agreement for equipment and supplies used in his contracting business. Complainant provided its address on the complaint as 1835 S. Black Canyon Highway, Phoenix, Arizona 85009.
On February 1, 2017, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(10).
Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that he lacked the capacity to pay and had not been paid by the general contractor on the project.
The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.
On February 23, 2017, the Registrar issued a Notice of Hearing, setting a hearing on April 13, 2017, at 8:30 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on the complaint.
Respondent moved to continue the hearing. Complainant did not oppose the motion to continue. On March 20, 2017, the Administrative Law Judge assigned to hear the case issued an order continuing the hearing to May 5, 2017, at 8:30 a.m. Staff at OAH sent a copy of the order to Complainant at the address on its complaint.
Respondent appeared for the duly noticed continued hearing.
Complainant did not request to appear telephonically at the continued hearing and did not request that the hearing be continued a second time. Although the start of the duly noticed hearing was delayed eighteen minutes to allow Complainant additional travel time, Complainant did not appear, through a member, authorized employee, or 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.
Because the Notice of Hearing that the Registrar mailed and the order continuing the hearing that OAH mailed to the address on Complainant’s complaint were reasonable, Complainant is deemed to have received notice of the continued hearing.
Complainant bears the burden of proof to establish statutory violations by a preponderance of the evidence.
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 Registrar’s final order in this matter, Complainant Neff Rental LLC’s complaint in Case No. 2017-162 against Respondent Donald Lee Thompson dba Thompson Development Companies’ License No. ROC274213 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, 2017.
Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors