1 O QUINN LAW, P.C. N. th Street, Suite -0 Phoenix, AZ 01 Phone: ( 0) -00 Fax: (0) -01 K.M. O Quinn (01) Attorney for Respondent. Pamela Gulczynski, Complainant, v. License No: K-.-D of ENTERPRISE FLOORS, LLC, Respondent. IN THE OFFICE OF ADMINISTRATIVE HEARINGS COME NOW Respondent License No. K-.-D of ENTERPRISE FLOORS, LLC. who makes this Court aware of the following avowals: 1. On March, 01 at approximately :00 pm. Exhibits were received from opposing counsel indicative of the hearing apparently scheduled on March, 01.. Counsel avows that she did not receive a copy or any type of notice of the Order granting continuance and setting the hearing date in this matter. Case Number: 01A--ROC REQUEST TO RESCHEDULE CONTESTED HEARING (Assigned to Honorable Eric Bryant, Judge). At approximately : am, on this date counsel undersigned telephoned the Office of Administrative Hearings and was advised telephonic contact was made with this office of March, 01 in which counsel was verbally advised of the March, 01 hearing date. However, there was in fact a voic from the Office of Administrative Hearings. In that voic , counsel was advised that a new date would be provided. (See Exhibit 1). 1
2 Additionally, counsel was advised via telephone call that orders are ed to counsel in active cases, and these s are routinely re-routed to the SPAM folder of typical office s. Additionally, the Clerk advised of a receipt indicating the was received. Request was made of such receipt and none was forthcoming.. While confirming the address of opposing counsel via telephone, Administrative Hearings Clerk advised she would resend the order setting new date. Having received this this morning, without the confirming transmission receipt, counsel notes that the Order Certificate of service states: Copy mailed/ ed/faxed March, 01. This document was not received by this office until today March, 01, again via .. In addition to a failure to receive notice through , counsel never received any type of notice via fax, mail, or personal delivery.. Based on the foregoing neither counsel, nor client were aware of the hearing. What is most important in the history of this case is that the license holder has aggressively defended himself in this action and would never fail to appear logically, if any type of notice was received. LEGAL RULES: Uniform Administrative Hearing Procedures Rule 1-.0 Service of documents: Unless otherwise provided in this article, every notice or decision under this article shall be served by personal delivery or certified mail, return receipt requested, or by any other method reasonably calculated to effect actual notice on the agency and every other party to the action to the party's last address of record with the agency. Each party shall inform the agency and the office of any change of address within five days of the change.
3 Uniform Administrative Hearing Procedures Rule 1-.0( D) states the agency shall prepare and serve a notice of hearing on all parties to the appeal or contested case at least thirty days before the hearing. (emphasis added) Arizona Rules of Civil Procedure, Rule Service and filing of pleadings and other papers states that : (c) Service after appearance; service after judgment; how made. (1) Serving an Attorney. -- If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. () Service in General. -- A paper is served under this rule by: (A) handing it to the person; (B) leaving it; (i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it via U.S. mail to the person's last known address -- in which event service is complete upon mailing; or (D) delivering the paper by any other means, including electronic means, if the recipient consents in writing to that method of service or if the court orders service in that manner in which event service is complete upon transmission. () Certificate of Service. -- The date and manner of service shall be noted on the original of the paper served or in a separate certificate. If the precise manner in which service has actually been made is not so noted, it will be conclusively presumed that the paper was served by mail. (emphasis added) LEGAL ARGUMENT: This conclusive presumption shall only apply if service in some form has actually been made. In the instant case, counsel undersigned makes the aforementioned avowals, in support
4 of her position that service of the date may have been ed, contrary to the rules, and also was not received until this day. Additionally, the March, 01, voice mail was received indicated a new date would be set. (See Exhibit 1 ) (This voice mail is available to be heard accurately as the voice/data transcription method is reflective of currently technology). Counsel undersigned checks her , faxes and particularly United States Mail on a daily basis. Counsel did not receive the ed notice, nor did she receive the written copy of the notice, as she learned from the Clerk of the Office of Administrative Hearings that the Order setting new date was never mailed. In applying the rules, the Uniform Administrative Hearing Procedures Rule 1-.0, demonstrates that delivery should be through certified mail or personal delivery; neither of which occurred in the instant case. If not through this means, then by any other means reasonably calculated to effect notice; in this case, the clerk stated that She knows for a fact that their s go to SPAM, which would defeat the purpose of reasonably calculated to effect actual notice. Also, in applying Uniform Administrative Hearing Procedures Rule 1-.0(D), it is established that notice was not given thirty (0) days prior to the hearing date. In the present case, an Order granting Continuance was granted on March, 01 and a hearing was set, at some point, for March, 01. This point was clearly established in the matter of ROC v. Arizona Builder s Emporium, Inc. F-R1-ROC, et al and articulated through Your Honor s Ruling of December, 0.
5 Therefore, good cause exists to re-set this matter to allow the Complainant to defend the allegations regarding his License. A request is therefore made to reschedule this matter to allow the presentation of evidence and to allow an opportunity of a defense by the License holder. 1 DATED this th day of March, 01. O QUINN LAW, P.C. By:/s/ Kathy M. O Quinn Kathy O Quinn Attorney for Respondent
6 ORIGINAL OF THE FOREGOING filed this nd day of March, 01, with: Office of Administrative Hearings Attn: Eric J. Bryant 0 West Washington, Suite 1 Phoenix, Arizona 00 (Also via Facsimile 0 ) COPIES OF THE FOREGOING hand-delivered this th day of March, 01, with Legal Department Arizona Registrar of Contractors 00 West Washington St., Ste Phoenix, Arizona 00 (Also via Facsimile 0 01) Guy W. Bluff, Esquire BLUFF AND ASSOCIATES North th Avenue Phoenix, Arizona 00- Attorney for Pam Gulczynski (also via BY: Kathy M. O Quinn 0 1
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