ALJDEC

00F-0259-ROC · Registrar of Contractors · 1999-12-17

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 1999.

APPEARANCES: The Complainant, Stephen Bulissa, was represented by his attorney, David Brnilovich, Esq.

The Respondent, Rose Contracting, was represented by its attorney, William J. Simon, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

At the outset of the formal opening of the scheduled hearing in the above-entitled matter, Complainant renewed his motion for a continuance based upon the asserted failure of Respondent to comply with the prior Interim Order of the undersigned Administrative Law Judge with respect to certain discovery matters.

Further prolonged discussions between the Administrative Law Judge and counsel for both parties served to generate a realistic concern that, despite the probable existence of concurrent jurisdiction by both the Registrar of Contractors and

by a civil court as to most, if not all, of the items of present complaint, this administrative tribunal was not the appropriate forum for an initial primary adjudication of the parties’ pending controversy, especially in light of the rather limited scope of discovery in these administrative proceedings.

Several issues relating to allegedly improper workmanship and possible aiding or abetting of unlicensed persons were determined to be matters that have been and are appropriately raised for consideration in this case. However, the Administrative Law Judge determined that, even assuming the existence of valid jurisdiction over issues based upon a lien filed by Respondent, charged hereunder as having been wrongfully filed, and more properly constituting part of presently pending lien proceedings, the exercise of any such jurisdiction by an administrative tribunal in advance of any civil court decision was, at best, highly questionable. Consequently, the Administrative Law Judge stated his intention neither to entertain jurisdiction over nor to receive any evidentiary presentations regarding that portion of the within complaint addressing the claimed impropriety and the amount of Respondent’s filed lien against the subject property.

Immediately following a recess after the above-described preliminary rulings, counsel for Complainant elected to effectively withdraw the pending administrative complaint and requested that the underlying Citation and Complaint in this action be dismissed. Such dismissal was considered to be fully appropriate in this matter in which no written directive had been issued by the Registrar’s assigned Inspector.

Any dismissal of the instant complaint and the charged violations, if and when ordered by the Registrar, is intended to be and would be expressly without prejudice to the respective rights, claims, counterclaims and/or defenses of either party that may

properly be asserted in another, more appropriate forum. The aforesaid request on behalf of Complainant, appearing to be reasonable under all the circumstances, warranted the adjournment of the hearing so that the entire matter may be returned to the Registrar for the termination of this administrative action.

In view of the foregoing, and for sufficient cause demonstrated, IT IS HEREBY RECOMMENDED that the Complainant’s withdrawal of the within complaint and his request for dismissal of the issued Citation be approved and that the Registrar of Contractors enter his Order dismissing the entire Citation and Complaint in Case Number 00-0259 without prejudice.

Dated: December 21, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Mr. Michael P. Goldwater, Director Arizona Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

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