ALJDEC decisions subject to certification as final

2019A-06315-RFA-LS-ROC · Registrar of Contractors · 2021-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Matthew Masterson,

COMPLAINANT

Desert Living General Contracting LLC,

License No. ROC 178030,

RESPONDENT

No. 2019A-06315-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 7 and 29, 2021

APPEARANCES: Jason Matthew Masterson on his own behalf; John Tellier, Esq. for the Registrar of Contractors; Chris Herzog appeared for Respondent on September 7, 2021, but no one appeared for Respondent on September 29, 2021

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On June 9, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Appealable Agency Action setting the above captioned matter for hearing at the Office of Administrative Hearings on July 16, 2021. The matter was continued and the hearing was conducted on September 7 and 29, 2021.

ROC’s Notice of Hearing provides:

PARTICULAR ARIZONA STATUTES AND RULES INVOLVED

The following Arizona statutes are rules are relevant to this matter: Title 32, Chapter 10, Article 2.1 of the Arizona Revised Statutes (A.R.S. §§ 32-1131 – 32-1140)

SHORT AND PLAIN STATEMENT OF THE MATTERS ASSERTED

Respondent [Desert Living General Contracting LLC] has contested the Registrar’s determination regarding Jason Masterson’s Recovery Fund Claim. The Registrar’s determination was made pursuant to A.R.S. §§ 32-1132 to 32-1133.01.

Complainant John Masterson and his wife entered a contract with Respondent Desert Living Contracting LLC that called for Respondent to perform remodeling work for Complainant.

On or about December 23, 2019, Complainant filed with ROC a complaint against Respondent.

ROC issued to Respondent a citation and an administrative hearing was conducted to address the allegations.

On June 29, 2020, ROC issued a Final Administrative Decision and Order through which it adopted an Administrative Law Judge Decision dated June 10, 2020. That ALJ concluded that Respondent’s work did not meet the minimum standards and that as of the date of that hearing there was deficient work that had not been corrected.

Through ROC’s Final Administrative Decision and Order it suspended Respondent’s license and imposed civil penalty against Respondent.

On or about April 3, 2021, Complainant filed a Recovery Fund Claim requesting a payout of $7030.46.

ROC’s Gail Mathews evaluated Complainant’s claim.

Ms. Mathews found that Complainant met the eligibility requirements for a payout from the recovery fund and recommended that Complainant receive a payout of $8530.46.

Through a Notice of Claim for Administrative Award, ROC informed the parties that Complainant was to be awarded $8530.46 in the form of a payment from the fund and that pursuant to Ariz. Rev. Stat. section 32.1133.01, either party could request a hearing to contest the amount or propriety of the payment.

Respondent exercised its right to contest the amount or propriety of the payout by requesting a hearing.

As of the hearing dates, no payout from the fund had actually been made. Before any payout can be made, ROC must issue a Final Order directing the fund to make that payout.

Although a representative for Respondent appeared on September 7th, no representative appeared on September 29, 2021. ROC and Complainant presented evidence on September 7, 2021 and each declined to present additional evidence on September 29, 2021. Consequently, no evidence was taken on September 29, 2021.

The record was held open to allow the parties to submit written closing arguments.

Complainant submitted a closing argument, but neither ROC nor Respondent submitted one.

CONCLUSIONS OF LAW

“Notwithstanding any other provision in this chapter, if a contractor license has been revoked or suspended as a result of an order to remedy a violation of this chapter, the registrar may order payment from the residential contractors' recovery fund to remedy the violation.” Ariz. Rev. Stat. § 32-1133.01(A).

Respondent had a right to request a hearing to contest the amount or propriety of any payout, subject to waiver for failing to timely make that request. Ariz. Rev. Stat. § 32-1133.01.

By failing to appear at the September 29, 2021 further hearing and failing to have any contact with the tribunal since the September 7, 2021 hearing date, Respondent has waived its right to have the amount or propriety of the proposed payout determined at a hearing. See e.g., Jones v. Cochise County, 218 Ariz. 372 ¶ 22 (Ariz. App. 2008)(“Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment.")(citation omitted).

ROC should issue an Order authorizing the fund to make a payout of $8530.46 to Complainant.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar issue an Order directing the fund to make a payout of $8530.46 to Jason Matthew Masterson.

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 40 days from the date of that certification.

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-137160-45720000Done this day, November 9, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000