ALJDEC

02F-A0198-ROC · Registrar of Contractors · 2002-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2002 APPEARANCES: Complainant failed to appear and Respondent was represented by his attorney, Robert Miller. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant did not present any evidence at the hearing in support of the allegations set forth in the complaint herein.

2. Respondent filed a motion to dismiss at the instant hearing, upon which he desired a ruling. The motion primarily asserts that the instant hearing is nothing more than a mirror image of the prior Registrar of Contractors’ complaint in case no. A01-0455 and, as such, should be dismissed based on the principles of res judicata and/or collateral estoppel.

3. In consideration of Respondent’s motion, this Tribunal reviewed the Recommended Decision and Order issued from the October 17, 2001 hearing in case no. A01-0455 and the instant filed complaint. Upon said review it appears to be clear that the two matters are identical.

4. Respondent placed the Registrar of Contractors on notice, in the answer filed in response to the Citation issued in this matter, regarding the fact that the instant complaint was identical to the complaint in A01- 0455. Notwithstanding the content of the answer, it appears that the Registrar ignored said information and merely forwarded the matter to the Office of Administrative Hearings. The instant complaint should never have gotten to the hearing stage, since even the most cursory of review would reveal that it is nothing more than a carbon copy of the earlier complaint. The decision in case no. A01-0455 is found to be res judicata on the issues contained in the instant matter.

CONCLUSIONS OF LAW

1. Complainant , by the aforementioned default in appearance at the hearing, failed to sustain the required burden of proving the charges set forth in the complaint by a preponderance of relevant, substantial and probative evidence and consequently the instant record does not support any finding that Respondent has violated the provisions of A.R.S. §32-1154A.

2. It is a well settled doctrine and policy of law that final orders of administrative agencies, after hearing, may not be subject to collateral attack in subsequent proceedings. The final Order in Registrar of Contractors’ case no. A01-0455 is found to be res judicata as to the issues and allegations in the instant complaint and serves as a further basis for dismissing the instant citation and complaint, with prejudice. RECOMMENDED ORDER

In view of the foregoing, and in light of the lack of prosecution by Complainant, along with the issue of res judicata, it is recommended that this citation, together with the complaint upon which it is based, be dismissed with prejudice. Done this day, April 15, 2002

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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