ALJDEC decisions subject to certification as final

2018A-3362-NPC-ROC · Registrar of Contractors · 2018-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2018, at 1:00 p.m. APPEARANCES: J D Concrete Innovations LLC (“Complainant”) did not appear; J & R Construction LLC, (“Respondent”) did not appear. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________

FINDINGS OF FACT This Administrative Law Judge Decision is being issued nunc pro tunc, effective October 5, 2018, regarding the scheduled hearing of October 5, 2018. The Arizona Registrar of Contractors (“the Registrar”) issued License No. 306388 to Complainant. Complainant’s address of record is 21429 E. Bonanza Way, Queen Creek, Arizona 85142. The Arizona Registrar of Contractors (“the Registrar”) issued License No. 316956 to Respondent. Respondent’s address of record is 14015 W. La Reata Ave., Goodyear, Arizona 85395. On July 23, 2018, Complainant filed a complaint (“Complaint”) with the Registrar against Respondent alleging that Respondent owed $5,500.00 for Complainant’s concrete work at 9721 E. McKellips in Mesa, Arizona. The work was performed beginning on June 29, 2018 and ending on July 3, 2018.

Complainant provided both its address of record and Respondent’s address of record on the Complaint. On July 24, 2018, the Registrar provided a copy of the Complaint to Respondent, indicating that it would issue a citation if there was no response to the Complaint by July 31, 2018. On July 31, 2018, Respondent advised the Registrar by email that the job was a “net 30 allowing 30 days to be paid.” Respondent asked the Registrar to dismiss the Complaint. On July 31, 2018, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.[1] On August 13, 2018, the Registrar issued an ORDER denying the request to dismiss the Complaint. The Registrar subsequently referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On August 14, 2018, the Registrar issued a Notice of Hearing, setting a hearing on October 5, 2018, 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. Neither party requested to appear telephonically or requested that the hearing 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 the Complaint against Respondent; neither party informed OAH that the matter was resolved. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[2] Because the Notice of Hearing was mailed to both party’s addresses of record, they are deemed to have received notice of the scheduled hearing.[3] Complainant bears the burden of proof to establish statutory violations by a preponderance of the evidence.[4] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to prosecute the 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. 2018-3362 against Respondent J&R Construction LLC, License 316956 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, October 11, 2018

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] 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 (1952).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826