ROC Vacate

2019A-05499-CHC-ROC · Registrar of Contractors · 2020-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael R. Horsley,

COMPLAINANT,

v.

AZ Turf & More LLC,

License No. ROC 314645,

RESPONDENT.

No. 2019A-05499-CHC-ROC

ORDER VACATING

HEARING ON THE MERITS

A hearing on the merits had been scheduled on this date to determine the merits of the complaint that Michael R. Horsley (“Complainant”) had filed with the Arizona Registrar of Contractors (“the Registrar”) against AZ Turf & More LLC’s (“Respondent’s”) contractor’s license. The Administrative Law Judge (“ALJ”) noted that the electronic file provided to the Office of Administrative Hearings did not include the Registrar’s directive. Respondent’s representative, Tracy Tingue, stated that Respondent never received the directive and that, if it had, it would have attempted to comply with the directive. The Registrar’s Investigator, Dennis Bierma, was not the original investigator who had investigated Complainant’s complaint and performed a jobsite inspection. Investigator Bierma stated that the originally assigned investigator’s notes did not mention that the investigator had ever spoken to Mr. Tingue or anyone at Respondent about the Directive.

Investigator Bierma provided the Directive to Complainant, to Mr. Tingue, and to the ALJ. The Directive only required Respondent to correct one relatively minor item of workmanship out of the eight items on Complainant’s complaint. Complainant stated that he had additional evidence of other deficiencies in Respondent’s work. The ALJ informed the parties that she could not amend the complaint to allege additional deficiencies without violating Respondent’s right to due process, which required that the Registrar fist investigate and, if appropriate, allow Respondent to correct the additional deficiencies. In any event, since Complainant had not disclosed any exhibits, the additional deficiencies did not appear to have sufficient evidentiary bases to allow the Registrar to investigate or Respondent to defend against the additional claims.

In light of the apparent lack of notice to Respondent of the directive and ALJ’s concerns about amending the complaint, Complainant elected to withdraw the complaint that he had filed with the Registrar and to file a civil claim against Respondent in a court of competent civil jurisdiction that could include all of Complainant’s concerns. Therefore,

IT IS ORDERED vacating the hearing on the merits that had been scheduled on this date at 1:30 p.m.

IT IS FURTHER ORDERED remanding this matter under A.A.C. R2-19-111(4) to the Director of the Registrar for further action.

Done this day, March 20, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Copy mailed/e-mailed/faxed March 20, 2020 to:

Jeffrey Fleetham, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington St., Suite 105

Phoenix, AZ 85007

Michael R Horsley

25829 N. 68th Ave.

Peoria, AZ 85383

[email redacted]

Dennis Bierma, Investigator

Registrar of Contractors

[email redacted]

Tracy Tingue

AZ Turf & More LLC

3123 S 99th Cir

Mesa AZ 85212-2062

[email redacted]

By c. serrano