ALJDEC decisions subject to certification as final
2017A-3074-NPC-ROC · Registrar of Contractors · 2017-12-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Quality One Shotcrete Inc.,
COMPLAINANT,
v.
Mirage Pools & Spas Inc.,
License No: 156814
RESPONDENT.
No. 2017A-3074-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 6, 2017, at 1:00 p.m.
APPEARANCES: Quality One Shotcrete Inc. (“Complainant”) did not appear; Mirage Pools & Spas Inc. (“Respondent”) did not appear.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. R-9.252404-R and CR-5.252405-D to Complainant. Complainant’s address of record is 634 S. Drew St., Mesa, Arizona 85210-2422.
The Registrar issued License No. B-5.156814-R to Respondent. Respondent’s address of record is 5616 E. McKellips Rd. Ste. 103, Mesa, Arizona 85215-2763.
On June 16, 2017, Complainant filed a complaint against Respondent with the Registrar alleging that Respondent owed a little less than $25,000.00 for Complainant’s work on three pools pursuant to its subcontracts with Complainant.
Complainant provided both its address of record and Respondent’s address of record on the complaint.
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, stating that it had paid Complainant in full for two of the jobs and that the parties had come to an agreement on what Respondent would pay for the third job.
The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.
On July 14, 2017, the Registrar issued a Notice of Hearing, setting a hearing on September 6, 2017, at 1:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant and Respondent at their addresses of record.
On September 5, 2017, Complainant requested that the hearing be continued because Respondent was paying Complainant $500.00 per week and Complainant wanted to give Respondent an opportunity to pay all the money that was due before the hearing.
On September 6, 2017, the Administrative Law Judge continued the hearing to December 6, 2017, at 1:00 p.m. OAH sent the order continuing the hearing to both parties at their addresses of record or the email addresses that they had provided.
Neither party informed OAH that Respondent had fully performed the settlement.
Neither party requested to appear telephonically or requested that the hearing again be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow the parties additional travel time, they did not appear or contact OAH to request that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to prosecute his complaint against Respondent.
CONCLUSIONS OF LAW
This dispute lies within the Registrar’s jurisdiction to resolve.
Because the order continuing the hearing that OAH mailed to Complainant’s address of record was 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 final order in this matter, Case No. 2017-3074 against Respondent Mirage Pools & Spas Inc.’s License No. B-5.156814-R 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 6, 2017
Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors