The

Janet Napolitano
Governor

OAH

Cliff J. Vanell
Director

Vol. 35
April 2005
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

Representation in ROC Disciplinary Proceedings
Introduction
One of the first questions that confronts a contractor
facing a Registrar of Contractors (“ROC”) disciplinary proceeding is the question of representation. Contractors often
choose to retain legal counsel in such proceedings, but many
contractors choose to represent themselves. The following
article provides a brief overview of who may represent a
contractor in a disciplinary proceeding, and under what
circumstances.
ROC Disciplinary Proceedings: A Brief Overview
When a complaint is filed with the ROC against a
licensed contractor, the ROC initiates an investigation. If, after
completion of its investigation, the ROC believes that grounds
exist that may support the imposition of discipline against the
contractor, the ROC will issue a Citation and Complaint
against the contractor’s license. The ROC may also issue a
Citation and Complaint at the request of the complaining
party. Generally, the Citation and Complaint will allege one or

Director’s note: OAH is committed to fairness and making hearings
accessible to all. The above article, originally written for and published in
the January 2003 ROC Newsletter, is part of a series of informational
articles to educate the public and parties who appear before us about the
hearing process and how to better present their cases. The article may be
found at OAH’s website at www.azoah.com along with all previous articles
published in the OAH Newsletter.

by Daniel G. Martin, Administrative Law Judge

more violations of Arizona Revised Statutes (“A.R.S.”) § 321154(A), which sets forth the grounds upon which a
contractor’s license may be suspended or revoked.
If the ROC issues a Citation and Complaint
against a contractor’s license, the contractor is required to
file a written answer within ten (10) days (an additional five
(5) days are permitted if the answer is sent by mail). If the
contractor fails to answer within the required time period,
the ROC deems such failure an admission of the charges
set forth in the complaint, and may take disciplinary action
against the contractor’s license without any further proceedings. Typically, however, a contractor against whom a
Citation and Complaint has been issued files a written
answer, and the case is thereafter referred for hearing to the
Office of Administrative Hearings (“OAH”).
ROC hearings are conducted before OAH Administrative Law Judges. ROC hearings are adversarial, and are
conducted in a manner similar to judicial proceedings. Attendance is required, and all parties must be prepared to present
evidence in support of their position.
If after hearing a contractor is found to have violated
one or more provisions of A.R.S. § 32-1154(A) (or other
statutory provisions, as applicable), the ROC may impose

“Representation ”
(continued on page 2)

The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceedings.
Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies
began in 1945 with California. The current American states and cities, and Canadian

provinces, having adopted the model, with year of inception are: Alabama (1998); Alaska
(2004); Arizona (1996); California (1961); City of Chicago (1997); Colorado (1976);
Florida (1974); Georgia (1995); Iowa (1986); Kansas (1998); Louisiana (1996); Maine
(1992); Maryland (1990); Massachusetts (1974); Michigan (1996); Minnesota (1976);
Missouri (1965); New Jersey (1979); New York City (1979); North Carolina (1986); North
Dakota (1991); Oregon (1999); South Carolina (1994); South Dakota (1994); Tennessee
(1975); Texas (1991); Washington D.C. (1999); Washington (1981); Wisconsin (1978);
Wyoming (1987); and Province of Quebec ( ).

Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially
hearing the contested matters of our fellow citizens arising out of state regulation.

3rd Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
93.13% of all Administrative Law Judge Decisions acted
upon by the agencies.* ALJ Decisions, including orders, were
accepted without modification in 86.59% of all Administrative Law Judge Decisions acted upon by the agencies.
67.04% of all agency modification was of the order only (i.e.
penalty assessed).
Appeals to Superior Court:
There were 28 appeals filed in Superior Court.
Rehearings:
The rehearing rate was 1.06%, defined as rehearings
scheduled (10) over hearings concluded (944).**
Completion Rate:
The completion rate was 107.8%, defined as cases completed (2128) over new cases filed (1973).
Continuance:
The average length of a first time continuance based on a sample
of cases (first hearing setting and first continuance both occurred
in the 3rd quarter) was 48.02 days. The frequency of
continuance, defined as the number of continuances granted
(209) over the total number of cases first scheduled (2031),
expressed as a percent, was 10.29%. The ratio of first
settings (2029) to continued settings on the calendar (246)
was 1 to 0.12
Dispositions:
Hearings conducted: 53.5%; vacated prior to hearing: 43.8%;
hearings withdrawn by the agency: 2.7%.
Contrary Recommendations and Agency Response:
18.46% of Administrative Law Judge Decisions were contrary
to the original agency action where the agency took a
position. Agency acceptance of contrary Administrative Law
Judge Decisions was 83.53%.

tor in an ROC disciplinary
proceeding before the OAH,
there are a number of exceptions
to this rule. The scope and
extent of these exceptions
depend on whether the licensee
is an individual (sole proprietor)
or a legal entity (corporation,
limited liability company, general
partnership, limited partnership
or limited liability partnership);
therefore, this article addresses
each different type in turn.
Individual (Sole Proprietor)
If the licensee is an
individual person (i.e., a sole
proprietor or sole owner), then
the only person who can
represent the licensee at an
ROC disciplinary hearing, other
than an attorney, is the licensee
himself. No other person may
represent the licensee, including
the licensee’s qualifying party or
an employee of the licensee.
The only time that a qualifying
party will be permitted to
represent a sole proprietor is
when the qualifying party and the
sole proprietor are the same
person.
Corporation

* 2.49% of Administrative Law Judge Decisions were certified as final by the
OAH due to agency inaction or were rendered moot by settlement.
** Cases which were vacated or which settled on the day of hearing are
not included.

“Representation”
(continued from page 1)
one or more disciplinary penalties against
the contractor, up to and including
revocation of the contractor’s license.
Therefore, the manner in which a contractor chooses to represent himself, herself
or itself at hearing can have significant
ramifications, and is not a decision to be
lightly or hastily made.
Who May Represent a Contractor in an
ROC Disciplinary Proceeding?
Although the general rule is that
only an attorney may represent a contrac-

If the licensee is a
corporation, it may be represented at an ROC disciplinary
hearing by a full-time officer or
an employee (including the
qualifying party), provided that: (1) the
corporation has specifically authorized
such person to represent it in the particular matter; (2) such representation is not
the person’s primary duty to the corporation, but is secondary or incidental to other
duties relating to the management or
operation of the corporation; and (3) the
person is not receiving separate or
additional compensation from the
corporation (other than reimbursement for
costs) for such representation.
A director of a corporation may
not represent the corporation solely by
virtue of his or her position as a director.
The only time that a director may represent a corporation is when such director
is also a full-time officer or an employee
of the corporation.

page 2

Limited Liability Company
If the licensee is a limited liability
company (LLC), it may be represented at
an ROC disciplinary hearing by a member, manager, full-time officer or employee
(including the qualifying party), subject to
the rule described above for corporations,
i.e., the member, manager, full-time officer
or employee must be specifically authorized, the representation must be a
secondary or incidental duty, and the
member, manager, full-time officer or
employee must not receive additional
compensation from the limited liability
company other than reimbursement for
costs.
The terms “member” and
“manager”, when used in reference to
limited liability companies, are specialized terms defined by Arizona’s Limited
Liability Company Act (the “Act”). A
“member” is a person who has been
admitted as a member in a limited liability
company pursuant to the Act. A “manager”
is a person in whom authority for management of the limited liability company is
specifically vested by the limited liability
company’s articles of organization.
General Partnership
If the licensee is a general
partnership (including a limited liability
general partnership), it may be represented at an ROC disciplinary hearing by
a partner or an employee (including the
qualifying party), subject to the rule
described above for corporations, i.e., the
partner or employee must be specifically
authorized, the representation must be a
secondary or incidental duty, and the
partner or employee must not receive
additional compensation from the
partnership other than reimbursement for
costs.
Limited Partnership
If the licensee is a limited
partnership (including a limited liability
limited partnership), it may be represented at an ROC disciplinary hearing by
a general partner or an employee (including the qualifying party), subject to the rule
described above for corporations, i.e., the
general partner or employee must be
specifically authorized, the representation
must be a secondary or incidental duty,
and the general partner or employee must

A g e n c y R e s p o n s e to

A d m i n is t r a t iv e

L a w

J u d g e

D e c is io n s J a n u a r y 1 , 2 0 0 5

Administrative Law Judge
Decision moot
0.00%

- M a rc h 3 1 , 2 0 0 5

9 0 0

Agency rejects the Administrative
Law Judge Decision
3.57%

7 8 1

8 0 0

Administrative Law Judge
Decision certified as final upon
agency inaction
2.49%

7 0 0

Agency amends order only
6.38%

6 0 0

cases

5 0 0

4 0 0

3 0 0

Agency amends findings of
fact/conclusions of law only
3.14%

2 0 0

1 0 0

Agency accepts without
modification
84.43%

5 9
3 3

2 9

2 3

0
0
A g e n c y a c c e p ts
w it h o u t m o d i f ic a t io n

A g e n c y
f i n d in
f a c t/c o n c
la w

a m e n d s
g s o f
lu s i o n s o f
o n ly

A g e n c y a m e n d s
o r d e r o n ly

A g e n c y r e je c t s t h e
A d m in is t r a t iv e L a w
J u d g e D e c is io n

A d m in i s t r a t iv e L a w
J u d g e D e c is io n
m o o t

A d m in is t r a t iv e L a w
J u d g e D e c is io n
c e r t if i e d a s f in a l
u p o n a g e n c y
in a c t i o n

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, January 1 - March 31, 2005
60.00
49.41

50.00

49.19

Days

40.00

*Note: Appealable Agency Actions are agency actions taken before an opportunity for a
hearing. A typical example would be the denial of a license. A party is entitled to a
hearing before the OAH before the action becomes final. Contested Cases involve actions
yet to be determined by an agency. An example would be proposed discipline on a
professional license with the possibility of suspension or revocation. Parties are entitled to
a hearing before the OAH prior to the agency acting.

30.00
16.33

20.00

20.06

11.76 11.57
10.00
1.27

AAA
CC

4.58

0.00
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing
to ALJ Decision

ALJ Decision to
Agency Action

1973 Cases Filed January 1, 2005- March 31, 2005
3rd Q FY 2005

Accountancy
Acupuncture Board
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
Arizona Trial Courts
Arizona Retirement Sys.
Attorney General
Arizona Works
Athletic Board
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Dental

8
5
0
0
9
3
101 245
2
1
0
0
888 2880
0
0
38
8
0
0
11
7
1
0
0
0
0
0
35
15
2
0
54
22
11
5
6
1
0
0
0
0
10
7
13
2

3rd Q FY 2005

Economic Security
Economic Security-CPS
Education (Board)
Education (Department)
Environ. Quality
Fingerprinting
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Massage Therapy
Medical Board
Medical Radiologic
Naturopathic
Nursing
Nursing Care Admin.
Occupation Therapy
Optometry
Osteopathic

page 3

0
35
0
0
52
20
0
3
75
17
2
20
0
0
0
7
0
1
34
3
0
2
0

0
150
1
5
123
213
0
7
279
57
6
44
0
0
4
14
0
1
76
9
0
3
0

3rd Q FY 2005

0
Parks
0
4
Peace Ofc. Standards
13
0
Physical Therapy
0
0
Podiatry
0
1
Psychologist Examiners
2
4
Public Safety - CW
9
10
Public Safety - Trans
21
0
Public Safety - Adult CC
0
0
Pvt. Post. Ed.
0
0
Racing
0
0
Radiation Regulatory
0
Registrar of Contractors 510 1499
36
Real Estate
118
17
Revenue
60
0
School - Deaf & Blind
0
3
Secretary of State
12
0
State Board of Education
0
6
Structural Pest Control
15
2
Technical Registration
3
0
Veterinary Board
0
1
Water Qual. App. Bd.
5
0
Water Resources
4
43
Weights and Measures
115

Evaluations of OAH Services
Note: The four major groups of those who responded are: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The evaluations are
filled out immediately after the hearing, and the evaluations are not disclosed to the ALJ involved.
They are used by management to improve the OAH process and do not affect the decisions
issued.
Unrepresented Responses 3rd Quarter

Excellent
Good
Average

Q
ue
st
io
n
Q
1
ue
st
io
n
Q
2
ue
st
io
n
Q
3
ue
st
io
n
Q
4
ue
st
io
n
Q
5
ue
st
io
n
Q
6
ue
st
io
n
Q
7
ue
st
io
n
Q
8
ue
st
io
n
9

Poor

700
600
500
400
300
200
100
0

Excellent
Good
Average
Poor

Q
ue
st
io
n
Q
1
ue
st
io
n
Q
2
ue
st
io
n
Q
3
ue
st
io
n
Q
4
ue
st
io
n
Q
5
ue
st
io
n
Q
6
ue
st
io
n
Q
7
ue
st
io
n
Q
8
ue
st
io
n
9

400
350
300
250
200
150
100
50
0

All Responses 3rd Quarter

Questions:

5. Effectiveness in dealing with the issues of the case

1. Attentiveness of ALJ

6. Sufficient space

2. Effectiveness in explaining the hearing process

7. Freedom from distractions

3. ALJ’s use of clear and neutral language

8. Questions responded to promptly and completely

4. Impartiality

9. Treated courteously

not receive additional compensation from the partnership other
than reimbursement for costs.
Authorization for Representation
The OAH does not ordinarily require representatives of
legal entities to produce written proof of their authority to represent
the entity at hearing. However, a person claiming to be so authorized may be required to swear to such authorization under oath.
Compliance with Hearing Procedures
One common question that arises in ROC disciplinary
proceedings is that of the non-lawyer who asks how he or she can
be expected to comply with the statutes, rules and procedures that
govern hearings before the OAH. Although the OAH strives to
make the hearing process as easy and straightforward as
possible, certain rules do apply, and all participants in the hearing
are expected to be familiar with and to follow those rules.
Parties to an ROC disciplinary proceeding should prepare
themselves by thoroughly reviewing the ROC Citation and Complaint
and other correspondence or documentation issued by the ROC, by

gathering evidence that supports their claim or defense, by arranging for the attendance of witnesses, either voluntarily or by subpoena, and by familiarizing themselves with the OAH’s statutes and
procedural rules by visiting the OAH personally or logging on to the
OAH’s website (www.azoah.com). Parties may also view streaming videos from the website designed to assist parties in preparing
for hearing, or obtain a copy of the CD, “Preparing for Hearing,” by
contacting the OAH. Because ROC proceedings before the OAH
are open to the public, parties may also attend and view hearings in
separate cases in front of their assigned Administrative Law Judge
in order to see firsthand how the hearing process works.
Conclusion
As can be seen from the above discussion, the question
of who may represent a contractor at an ROC disciplinary proceeding depends on a number of factors. Contractors who are
facing a disciplinary proceeding should give careful consideration
to who they choose to represent them, and pay close attention to
the legal requirements for representation to ensure that the
person they choose to represent them at hearing will be able to
do so.

This publication is available in alternative formats. The OAH is an equal opportunity employer.