ALJDEC decisions subject to certification as final
2018A-226-CHC-ROC · Registrar of Contractors · 2018-07-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shri Hari Hotel LLC,
COMPLAINANT,
v.
Az Pool Resurfacing LLC ,
License No: 292092
RESPONDENT
No. 2018A-226-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 19, 2018, 1:00 P.M.
APPEARANCES: Filippo Davi, Member/Owner, appeared on behalf of Respondent; no appearance was made on behalf of Complainant
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Az Pool Resurfacing, LLC (Respondent), is the holder of
License Number 292092 issued by the Registrar of Contractors (Registrar).
2. On or about January 17, 2018, Shri Hari Hotel, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent did not perform pool resurfacing work for which it was contracted to do. The Complaint alleged a contract, dated May 3, 2018, for the total contract amount of $20,000.00
3. The Registrar then issued a Citation to Respondent, dated February 23, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract without legal excuse for the abandonment);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(A) for failure to perform all work in a professional and workmanlike manner);
c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
4. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for June 19, 2018, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Complainant on or about May 3, 2018, at its address of record.
5. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.
6. A hearing was held on June 19, 2018, at 1:00 P.M. Filippo Davi. Member/Owner, appeared on behalf of Respondent.
7. Although the commencement of the hearing was delayed approximately 20 minutes, Complainant did not appear at any time during the hearing. Complainant further did not request to appear telephonically nor did it request that the hearing be postponed or rescheduled.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994); see also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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3. Violation of any rule adopted by the registrar.
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12. Failure in any material respect to comply with this chapter.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved contain in writing certain minimum information.
7. As Complainant did not attend the hearing to present any evidence, it consequently did not meet its burden of proof to demonstrate that Respondent has violated any statutes in question.
8. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), A(3), and (A)(12).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2018A-226 shall be dismissed.
. In the event of certification of this 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 the certification.
Done this day, July 9, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors