ALJDEC

99F-1784-ROC-com · Registrar of Contractors · 2000-07-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 24, 2000 at 9:00 a.m. APPEARANCES: Complainant did not appear; Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Neither party appeared at this compliance hearing, although the Registrar of Contractors’ Inspector Warren Duncan appeared. Based on the record, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT The Registrar issued License No. 113002, Class B-03, to Respondent, a corporation, on May 17, 1996. On November 14, 1996, Respondent contracted with Complainant to perform some roof work. Although the record does not contain a copy of the parties’ contract, other documents indicate that Respondent applied an elastimeric coating to the flat roof on Complainant’s residence. On November 1, 1997, Complainant made a complaint to the Registrar against Respondent’s contractor’s license, alleging that the roof leaked. Respondent made some repairs and, apparently, neither side requested a hearing for the next year or so. On December 9, 1998, Complainant made another complaint to the Registrar because her roof was still leaking or had started leaking again. Respondent’s contractor’s license was canceled on August 14, 1998. The Registrar’s Inspector Marty DiAntonio performed a jobsite inspection and, on January 4, 1999, directed Respondent to make certain repairs. On February 9, 1999, the Registrar issued a Citation and Complainant against Respondent’s contractor’s license and, after receiving Respondent’s timely answer, and, on March 22, 1999 scheduled a hearing a hearing to be held on May 11, 1999 before Administrative Law Judge Allen Reed. On April 30, 1999, Complainant requested that the hearing be vacated because Respondent had completed the corrective work. Judge Reed vacated the scheduled hearing. On April 4, 2000, Complainant informed the Registrar that the roof had started leaking again. On April 25, 2000, the Registrar’s Inspector Warren Duncan performed a compliance inspection, noted recent repairs to the roof, and found that the drywall ceilings in the garage and master bedroom showed evidence of water damage. On May 2, 2000, the Registrar reopened the complaint, noted that Inspector Duncan’s report “indicate[d] that outstanding items remain,” and ordered that a compliance hearing be scheduled in due course. The Registrar issued a Notice of Compliance Hearing on May 22, 2000. The notice shows that it was sent to both parties’ most recent addresses of record. In response to the Notice, Respondent’s qualifying party informed the Registrar that he was attempting to complete the repairs that Inspector Duncan’s report indicated remained outstanding. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow both parties additional travel time, neither party appeared, personally or through a duly authorized representative, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, or presented any evidence at the hearing. An Office of Administrative Hearings’ staff member contacted Complainant shortly after she failed to appear for the hearing to ascertain whether she still desired administrative relief. Complainant informed the Office of Administrative Hearings that she had not received the notice of hearing but that she no longer desired a hearing because Respondent had almost completed repairs to her roof. Complainant promised to send a motion to vacate the hearing to the Office of Administrative Hearings. Although the record was kept open a week for receipt of this letter, as of this date no motion to vacate has been received. CONCLUSIONS OF LAW Since the Registrar has not entered a final order against Respondent’s license, in this administrative compliance proceeding, Complainant bears the burden of proof and must establish continuing statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). Complainant, by failing to appear or prosecute her complaint at the hearing, failed to sustain her burden to prove the charges alleged in the complaint by a preponderance of relevant, substantial and probative evidence. Consequently, the record does not support a conclusion that Respondent continues to violate A.R.S. § 32-1154(A). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors close the Citation and Complaint in Case No. 99-1784 and terminate Respondent’s License No. 113002, Class B-03 in good standing. Done this day, July 31, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of July, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826