ALJDEC decisions subject to certification as final

02F-F0236-ROC-com2 · Registrar of Contractors · 2008-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Videoconference hearings were held on November 13, 2007, March 13, and May 7, 2008. The record remained open until June 27, 2008 to allow for closing memoranda. APPEARANCES: The Complainant, Lonnie Reed, appeared in his own behalf. Mark Moore, Esq. appeared on behalf of the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Background Facts The following background facts are taken from previous decisions in this case by Administrative Law Judge (ALJ) Anthony Halas and the Order of Yavapai County Superior Court Judge Thomas Lindberg , in Case No. CV 82004- 0177 (the Appeal of the initial ROC Compliance Hearing Order in this case).

1. On July 31, 2000, the Complainant’s family moved into their home in Sedona, Arizona, constructed by the Respondent. 2. On June 26, 2002 the Complainant filed the initial Complaint against the Respondent with the Registrar of Contractors (ROC). The Complainant amended the Complaint on July 8, 2002. 3. On February 6, and May 6, 2003, ALJ Halas conducted the first hearing in this matter. 4. Based on the evidence presented in the case, ALJ Halas issued a decision on May 27, 2003. The decision established the Respondent had violated A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108, workmanship standards, and (A)(7), committed a wrongful act with substantial injury. An (A)(23) allegation (failure to take corrective action) was not sustained because of the “ Complainant’s documented limitation of access absent the Respondent abiding by the conditions of Complainant’s choosing”[1]. 5. The Recommended Decision required: “On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter, the Class B License No. 044281 of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate action to complete and correct those items determined above in Conclusion of Law No. 4. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the required work on or before the effective date of the Registrar’s Order, or is unreasonably denied access for such purpose, the above license suspension shall not take place, and the Citation in Case No. F02-0236, and the Complaint upon which it is based, shall be closed.” [2]

6. On June 16, 2003 the ROC adopted the Recommended Decision. The Order of the Registrar was not accomplished by the respondent, and on January 13, and April 24, 2004, the matter came on for a Compliance Hearing before ALJ Halas. 7. On May 7, 2004, ALJ Halas submitted his decision based on the evidence presented at the Compliance Hearing. Judge Halas made certain findings, conclusions, and issued another Recommended Order. The majority of ALJ Halas’ decision is submitted as part of the instant decision in order to give a more complete picture and explanation of the complexity and duration of the case based in significant part on the personalities and attitudes of the parties: “…5. During the course of the two-day compliance hearing, which proceeded in a somewhat rancorous manner, the parties provided extensive testimony and evidence addressing multiple variations on the theme whether Complainant had granted Respondent appropriate access to accomplish, by means and methods of the contractor’s choosing, the corrective action previously determined necessary.[3] 6. The evidence demonstrates that after the Registrar’s ORDER was issued and became final, Complainant obtained from Respondent certain terms and voluntary concessions – which were not otherwise shown to be legally required or per industry // standard – in an attempt to address and control the question of access, given his and his wife’s concerns for the safety of their two young children during the course of the remedial work to be done on the interior, as well as for the continued operation of their in-home business, which relied on multiple computers and other technology. Terms and concessions specifically agreed to by Respondent in order to gain access included written rather than verbal communications with Complainant; written 72 hour notice before any remedial work began; moving and storage of furniture and bulk belongings; and relatively higher-end local hotel accommodations for the family for the period of time necessary for the corrective work to be completed. 7. However, due to somewhat inexplicable miscommunications and misperceptions, the negotiation of other terms as precursors to access ended with less than certain agreement between the parties. These uncertain terms included Complainant’s refusal to become an “employee” of Respondent relative to the packing and protecting of the family’s personal items; the question whether Complainant’s pet cat was to be boarded at Respondent’s expense; and disagreement concerning the permissible start time for Respondent’s remedial work to begin vis-à-vis Complainant’s hotel check-in time. It was this last imbroglio in August 2003 which eventually resulted in the present ongoing impasse. No further constructive communication or corrective action has taken place since September, 2003.

CONCLUSIONS OF LAW

1. The Registrar’s ORDER previously entered in this matter is self-operative, requiring Respondent Neal Klein Construction to provide the Registrar of Contractors with proof that it has substantially complied with the terms and conditions set forth therein. 2. On the preponderance of the evidence presented, this tribunal determines and concludes that Respondent voluntarily made significant and reasonable efforts to address the fairly emphatic written requests made by Complainant relative to safety, storage, and accommodations while Respondent was in the process of determining the means and methods of scheduling and proceeding with the corrective work for which it was responsible. 3. However, Respondent has not substantially complied with the terms and conditions of the Registrar’s ORDER for reasons resulting from mis-communications and misperceptions relative to the question of access. Therefore, the undersigned concludes that prior to the imposition of discipline, Respondent should be provided one last opportunity to reach a good-faith meeting of the minds with Complainant on the terms of the access required for Respondent to take the corrective action necessary. 4. In providing direction to the parties to clarify the question of access, and to allow this matter to proceed forward timely and expeditiously, it is the determination of this tribunal that the following specific terms – essentially consistent with the prior agreement of the parties - constitute those terms reasonably required in this case for access to take place: A. All communications between the parties are to be in writing, and transmitted via e-mail (to one specified number for each party) during normal business hours, or by first-class mail; B. Respondent shall provide 72-hour written notice prior to the commencement of corrective action, with all such work to be done between 7:00 a.m. and 5:00 p.m., Monday through Friday, absent mutual written agreement to the contrary; C. 1. Respondent is to provide moving, storage, and return of furniture and large or bulk items, and appropriate protection of built-in items, extending for the duration of the time during which interior corrective action is taking place. 2. Complainant is to provide for moving, storage, and return of personal, small, valuable or fragile items (including computer equipment) extending for the duration of the time during which interior corrective action is taking place. D. Respondent is to provide hotel accommodations for Complainant and his family equivalent to those previously agreed to, with such accommodations extending for the duration of the time during which interior corrective action is taking place. Respondent is to provide Complainant written confirmation of the hotel reservations, the name in which they are made, and the name of a contact person at the hotel. Check-in time at the hotel is to be the same as start-up time for repairs. 5. All other issues relative to access are to be addressed and resolved by the parties reasonably, timely, and in good faith, without undue effort to thwart progress toward compliance. 6. When provided access pursuant to the foregoing terms, Respondent must act promptly by means and methods of its choosing reasonably directed to achieving substantial compliance with correction of all aspects of the remedial work required by the Registrar’s ORDER. Any unreasonable limitation of access to Respondent by Complainant may be deemed to establish Respondent’s substantial compliance with the necessary corrective action. RECOMMENDED ORDER

IT IS RECOMMENDED that, commencing 60 days from the effective date of the Order on Compliance entered in this matter, the Class B License No. 044281 of Respondent Neal Klein Construction Corporation be suspended until the Registrar receives proof that Respondent has accomplished all required corrective action in a workmanlike manner. (The effective date is 40 days after issuance of the Order). IT IS FURTHER RECOMMENDED that if Respondent accomplishes the above-described corrective work on or before the effective date of the Order entered in this compliance matter, or is unreasonably prevented from doing so, then the above-described license suspension shall not take place, and in that event this Citation, and the Complaint upon which it is based, shall be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

8. On May 28, 2004 The ROC adopted the ALJ Recommended Decision. The Respondent appealed the case to Yavapai County Superior Court after the ROC denial of the Motion for Rehearing. 9. The appeal, Case No. CV 82004-0177, was heard by Judge Thomas Lindberg who issued a decision on July 25, 2005. The essence of the decision is that the ROC decision (ALJ Recommendation) was in error because of the imposition of conditions for the Respondent to gain access to the home[4]. In the decision Judge Lindberg stated “No legal authority has been demonstrated to the Court that the Registrar may impose conditions on access ([5]) outside those which are legally required or required by industry standards”. The Court went on to reverse and remand the case. In so doing, Judge Lindberg stated that ROC and the ALJ, within their discretion, may order further hearings and including hearings on the payment of restitution as a condition of license reinstatement in lieu of the Respondent performing corrective work[6]. 10. The second Compliance Hearing commenced by videoconference on November 13, 2007. Judge Halas was no longer with the Office of Administrative Hearings (OAH) and the matter was assigned to the current ALJ. Further hearings were held on March 13, and May 7, 2008[7]. The record remained open until June 27, 2008, to allow the parties to submit written closing arguments. 11. Based upon the background facts as outlined above, and the evidence presented at the second Compliance Hearing[8], the following findings are submitted. Findings of Fact 12. No substantive action was taken to resolve this case after Judge Lindberg’s Order in 2005, (nearly three years ago), until June of 2007, nearly two years after the remand, when the Complainant requested of the ROC that the instant case proceed. There were numerous ancillary actions before ROC and Superior Court which related to, but distracted the parties from the instant case. However, neither side took timely action to directly address the issues set forth by Judge Lindberg’s Order. 13. In his opening statement, the Complainant sought revocation of the Respondent’s license. In the closing statement the Complainant restated ALJ Halas’ initial recommendation of suspension until corrective work was accomplished[9]. That remedy did not work then, and there is no reason under the facts of this case to believe it will work now. Judge Lindberg appears to have been aware of this three years ago when he suggested possible restitution as a remedy in the case[10]. 14. The facts adduced from the evidence clearly establish that the Respondent is unlikely to be able to reasonably accomplish the required corrective work at the Complainant’s home. The work cannot be done while the home is occupied and the conditions for the Complainant to vacate the home cannot be imposed by the Registrar. Added to this is the Complainant’s past and current assertion that the Respondent has not acted in good faith during the course of their relationship and that the Respondent is incompetent. These assertions by the Complainant are coupled with a host of additional negative contentions as well as ancillary legal and administrative actions taken by the Complainant against the Respondent, its personnel, its attorney, as well as others only marginally related to the instant case. Under such circumstances it is disingenuous for the Complainant to continue to insist he wishes the Respondent to perform corrective work. 15. The Complainant urged that the corrective work required by the ROC is structural and requires special engineering and permits. The Respondent’s witness on the issue, Michael Keith, disagreed. The initial evidence presented by the Complainant (Exhibits C-15 and C-51) do not prove that any of the work would be of such a nature as to require the engineering[11] claimed by the Complainant. Exhibit C-59, another letter from Jack Judd, the Yavapai County Building Safety Unit Manager, dated December 31, 2007 (after the first day of the instant hearing on November 13, 2007), asserts that after review of Michael Keith’s report regarding repairs to be made, a permit and structural engineering would be required per the Yavapai County Building Code adopted in 2006. It is noted that the above cited exhibits are dated November 5 and 8, and December 31, 2007, (eight and five days prior to the first day of and six weeks after this hearing). The statements in the exhibits do not establish a reason or provide an explanation for the Complainant’s position prior to the date of the respective letters[12]. 16. The Respondent argues that the Complainant is (and has been) unreasonable, litigious, and obstructionist. The Respondent cites a number of legal and administrative actions brought by the Complainant against persons not involved in the construction problems with the Complainant’s home [13], but only involved by virtue of the Complainant having filed the various Complaints against the Respondent. According to the Respondent, these additional legal and administrative actions are relevant to the Complainant’s state of mind, including motive, intent, and good faith or lack thereof in resolving the matter at hand. An attempt to determine why the current impasse was reached and continues, requires an evaluation of each party’s actions if those actions reflect attitudes and motivation which have a substantial relationship to the case in chief. 17. In his Closing Argument, the Complainant urges the ALJ to not consider the issues raised and evidence presented by the Respondent with respect the other legal actions brought by the Complainant in matters not directly related (but nevertheless ancillary) to the instant case. The Complainant argues the only relevant issue is that the Respondent has failed to perform corrective work as required by the ROC Order. Conclusions of Law The issue to be determined in the instant case is whether and to what extent the Respondent bears responsibility for the failure to perform the corrective work required by the Registrar’s Order in this case. The converse issue is whether and to what extent did the Complainant actively or constructively obstruct the Respondent so as to constitute a denial of access. 1. As stated multiple times during the course of the proceedings, the current ALJ cannot alter the final findings and conclusions of Judge Halas in the original and the Compliance hearings. Nor can the ALJ alter the decision of Judge Lindberg. This being the case, the competent evidence to be considered in this second Compliance hearing should primarily focus on matters occurring after July 25, 2005, with matters occurring prior to that time, considered only to shed light on, or explain the more recent or present conditions and circumstances. 2. The Respondent asserted that it has done nothing to comply with the respective ROC Orders since the remand from Superior Court because of the various related legal and administrative actions (summarized in footnote 13) filed by the Complainant. It is the Respondent’s contention that these actions clearly show the Complainant has no intention of cooperating with the Respondent to accomplish the required work. The Respondent’s argument is persuasive. The fact that some of the Complainant’s administrative and legal actions have had little merit or substance (ROC Complaint, Docket No. 05F-F0187, against Michael Keith, wherein the Complainant was found to lack “good faith”), have been dismissed (the fraud count in Superior Court against the Respondent and the defamation action against Thomas Walter[14], or the suit against Respondent’s counsel alleging 133 counts of lying to the Court[15]), are some examples of the why a party must be circumspect and exercise extreme caution when dealing with the Complainant. Hesitancy under such conditions is quite understandable and in part mitigates the Respondent’s failure to take more aggressive action with respect to failing to performing corrective work since the remand by Judge Lindberg. 3. The Complainant testified and gave reasons for the ancillary legal and administrative actions taken. Considering the evidence in totality, including the findings and conclusion by ALJ Morton[16], and the dismissal of other cases and portions of cases, it is concluded the Complainant’s reactions and responses in some of these matters have been excessive and counterproductive to achieving a reasonable resolution to the issues initially raised in the instant case over six years ago[17]. These ancillary legal and administrative issues are considered relevant and probative in assessing the Complainant’s attitude, conduct, and responsibility with respect to the matters addressed in the instant case. 4. The facts and circumstances of the case show that both parties bear some portion of the responsibility for the failure to accomplish the corrective work ordered by the ROC. However, at this point the Complainant appears to have been more resistant and uncompromising. He seeks complete affirmation of his position. As already stated, his assertion that he wants the Respondent to perform corrective work is not supported by the evidence or by reason (Finding of Fact 14). It appears that the Complainant’s objective was and continues to be expansion of litigation in multiple directions with multiple parties, (much of it for minor or perceived mistreatment or insult). The Complainant in large part is relying on zealous literalism and an overly technical legalistic approach to many of the issues he has raised,[18] rather than seeking a practical resolution of what was once a manageable issue and by all appearances a moderate problem. It appears that continuing contest on multiple fronts has become the goal. The evidence does not support many of the Complainant’s actions, reactions, or his contentiousness over the course of these multiple proceedings. In short, it is concluded that many of the Complaint’s responses have been so out of proportion as to make his current stated position[19] in this case untenable. 5. The above conclusions regarding the Complainant do not completely relieve the Respondent of its responsibilities under the law. The fact is that the initial Order for corrective work was a consequence of the Respondent failing to meet minimum workmanship standards. Additionally, the question of why the Respondent appealed the Compliance Hearing Order after having offered to pay for accommodations if it was desirous of performing the work, was not asked or answered. Finally, the Respondent could have made some final effort of record after the Order from Judge Lindberg, to show its good faith in attempting to reach a resolution prior to the instant hearing. 6. In general terms, the primary statutory duty of the Registrar of Contractors as a part of the executive branch of government, is to regulate the construction industry (contractors) for the protection of the public pursuant to legislative mandate. Attendant to that obligation is the Registrar’s statutory ability to require a contractor to perform corrective work when construction does not meet minimum standards and as a consequence, the consumer has been injured by a contractor. However, the Registrar does not have the same jurisdiction over the consumer and cannot require the consumer to perform or act in a specified manner in order for the corrective work to be accomplished. The most that can be done by the Registrar is to require a Complainant to provide reasonable access which envisions a certain amount of cooperation between a Complainant and Respondent, and good faith attempts by both to achieve a common goal. In the instant case and after considering all the evidence. It is concluded that neither cooperation nor good faith were fully forthcoming [20]. 7. The clear fact is that due in substantial part to the Complainant’s actions as discussed above, the Respondent cannot reasonably accomplish the corrective work set forth in the ROC Order. The next question is whether the Respondent is relieved of all responsibility in the case. It is concluded the Respondent bears some responsibility for the past and current state of affairs and that after six years and multiple litigations, partial restitution is appropriate for the termination of this matter by the ROC. A.R.S. §32-1156.01 allows, and Judge Lindberg suggested restitution as a means of resolving the case. The statue is permissive and not mandatory. This ALJ and prior decisions approved by the ROC have set partial restitution as a viable and lawful resolution when the evidence is too speculative and does not establish a reasonably accurate amount for complete restitution. Partial restitution allows the injured party to seek any additional amounts which may be justified, in a civil forum[21]. Additionally, as alluded to in paragraph six of these conclusions, the Registrar is not legally obligated to make a Complainant whole or otherwise to totally satisfy a Complainant. The Registrar is obligated to regulate the industry in a manner that protects the public from incompetent or dishonest contractors[22]. Despite the Complainant’s desire, the evidence in this case does not support or justify indefinite suspension or revocation of the Respondent’s license. The deviations of an inch or less from minimum standards have not been shown to be structural in nature or otherwise constitute a danger to the Complainant or others. Recommended Order It is recommended commencing the effective date[23] of the order issued in this matter that Class B- license of the Respondent shall be suspended until the Respondent pays or tenders payment to the Complainant in the amount of $15,000.00 [24] (Fifteen Thousand and 00/100’s Dollars) in partial restitution. The acceptance of such payment by the Complainant is not to be construed as a bar to further action in a court of competent jurisdiction for additional restitution or damages associated with the construction of the Complainant’s home. It is further recommended that refusal by the Complainant to accept proffered payment of the partial restitution as set forth by the Order in this case, shall relieve the Respondent of any further obligation to the Complainant regarding the instant case before the Registrar of Contractors. It is further recommended that if the Respondent timely pays or tenders payment to the Complainant as set forth by the Order issued in this case, then the suspension shall not occur and the case shall be closed.

Done this day, July 15, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] This constitutes a finding and conclusion which became final in that (A)(23) was dismissed. Significant contrary evidence offered by the Complainant in the instant hearing, contrary to the quoted language is not considered competent as to the Complainant’s actions or position prior to the Judge Halas decision. The Complainant’s presentation on the issue in the instant case is an attempt to reargue the original case. [2] The following Corrective Work Order items are incorporated in Judge Halas’ initial decision: “Item # 1. The doors of the residence do not all appear to meet industry standards due to an out of plumb and level conditions. The contractor shall correct all doors to bring them within industry standards for plumb level and operation.

Item # 2. The walls of the residence do not appear to meet industry standards for straight and plumb within 1/4". The contractor shall make necessary repairs insuring all walls are within industry standards.

Item # 3. There are walls that do not appear to be perpendicular within 1/4" in 10'. The contractor shall make necessary repairs.

Item # 4. The kitchen counter top appears to be 3/8" out of level to the right of the sink. Correct by appropriate means.

Item # 5. There are carpet seams that appear to have excess latex material applied. There are also areas of filled holes at doorways. These conditions are not to industry standards. Correct by appropriate means.

Item # 6. The exterior stucco appears to have inadequate coverage with wire showing particularly at outside corners and at the electrical panel. Correct by appropriate means.

Item # 7. There are two fascia boards that appear bowed or twisted in excess of industry standards allowable. Correct by appropriate means. Item # 8. The front door dead bolt does not appear to meet industry standards for ease of operation. The contractor shall correct the dead bolt operation, once.

Additionally reviewed issues listed on the "amendment." Item # 1. & 2. The roof tiles do not appear to meet industry standards due to one each slipped tile to the south of the entry and one each buckled tile to the north of the entry. The contractor shall correct these tiles and insure nailing of all of the tiles installed complies with the local authority's regional requirements. Note: The amendment letter also lists a # 3, stated as "insufficient" grout. The homeowner was contacted for clarification and this is a reference to hollow sounding tile. Another site inspection may be necessary to determine the condition. …

Inspector Schweiger conducted a second jobsite inspection on August 16, 2002, and then issued a Corrective Work Order on August 21, 2002 (CWO II; Exhibit B), directing the contractor to take the following action within 15 calendar days:

The ceramic-tile does not appear to meet industry standards due to an excessive amount of hollow sounding tile in the rooms where it was installed. The contractor shall correct hollow sounding tile by appropriate means.”

[3] Of the ten or so items deemed in need of correction pursuant to the Registrar’s ORDER, only the roof has undergone any significant remedial work. Because that remedial work was not inspected by the Registrar’s inspector for purposes of this proceeding, and because the essential issue remains whether access was provided, no determination was made herein whether the remedial work on the roof substantially complied with the Registrar’s minimum standards of workmanship. [4] That the Respondent was responsible for moving , storage and accommodation costs. [5] Exhibit C-11, the objectionable conditions included the requirement in the ROC decision that the Respondent provide hotel accommodations, moving and storage expenses. The Court found this an abuse of discretion. [6] It is noted that the original ROC Order requiring the corrective work to be performed, became a final Order and was not part of the appeal to Superior Court. [7] Because of the change in the ALJ hearing the case, much of the evidence was repetitive of what had already been heard by Judge Halas. This added to hearing time. [8] The instant hearing was on three days over a period of six months. There may have been some confusion during the video conference hearing regarding the admission of exhibits which were addressed. Therefore, exhibits and other evidence which is relied upon in the course of this decision is admitted nunc pro tunc if it was not specifically admitted on the record. [9] During his testimony the Complainant also alluded to a prior suggestion that the Respondent buy back the home at the then appraised value. This never bore any fruit and is not considered a realistic proposal for consideration in the instant case. [10] There is no inconsistency in the ruling as asserted by the Complainant. Judge Lindberg merely offered the potential alternative of restitution to the ROC decision which required the Respondent to perform corrective work. There is no showing that this was legally improper or beyond the court’s jurisdiction. [11] It appeared that a permit might be required due to a 2006 Yavapai County Building ordinance change. However, the question is not clearly answered because Judd was not available to testify. The simple fact remains that the extent of the necessary correction is unknown because the investigative “destructive” work has not been accomplished. [12] The Complainant’s structural argument and the letters from Judd almost appear as an afterthought or newly discovered justification for continuing litigation in light of the fact that this case was remanded over two years earlier and the Judd initial letters are dated only eight and five days prior to the first day of the instant hearing. It seems to be a untimely attempt to justify a position by means of an argument and evidence not previously set forth or contemplated. The evidence (Judd letters) did not exist at the time the Complainant requested the instant hearing. [13] Including legal actions in Superior Court against the Respondent for fraud and other counts, against Thomas Walter individually for defamation, an ROC Complaint against Michael Keith because of alleged false testimony in the initial hearing, three attempts to disqualify Judge Mackey of the Yavapai Superior Court, in related legal actions, a legal action against the Respondent’s counsel (Abuse of Process alleging 133 instances of lying to the court), special actions and an unsuccessful appeal to the Arizona Court of Appeals, and intimating legal action against the Respondent’s counsel’s counsel. In addition, in order to deter the Respondent or its employees from going onto a website relating to the Respondent created by the Complainant, the Complainant placed what was described as a “unilateral contract” on the website. This purported contract was in the amount of $10,000,000.00 if a person affiliated with the Respondent logged onto the website. Presumably the Complainant considered any such entry onto the website as acceptance of the cost of $10,000,000.00 to do so (apparently construed as the offer). Such machinations do not require additional comment. [14] The Complainant’s Second Amended Complaint (Exhibit C-89) in Yavapai County Superior Court CV 82003-0343, is 114 pages. [15] Exhibit C-12 is the Complainant’s Third Amended Complaint in CV [number redacted] in Yavapai County Superior Court. It lists as defendants the Respondent’s counsel (three attorneys) individually and as a professional corporation, Neil Klein Construction, and Thomas Walter individually. It was filed July 7, 2007. [16] In 05F-F0187-ROC, certain of ALJ Morton’s findings in are significant and instructive:: “38. The Administrative Law Judge finds that Complainant failed to appreciate the purpose of the instant ROC disciplinary hearing. Complainant’s allegations of perjury and conspiracy to commit fraud represent a lack of understanding of the law and the nature of the administrative hearing process. Complainant’s allegations of misrepresentation amounted to nothing more than a disagreement with Respondent about the merits of the Complaint. Complainant maintained that Respondent (through Mr. Keith) made material misrepresentations when Mr. Keith’s statements were clearly immaterial to the issues at hearing. Complainant vehemently maintained that Mr. Keith’s statements were facts when they were clearly opinions. 39. The foregoing cast significant doubt about Complainant’s credibility. The Administrative Law Judge finds that the instant Complaint was so lacking in merit that it could not have been filed in good faith. Complainant demonstrated such contempt and personal animosity toward Mr. Keith that the Administrative Law Judge can only conclude the instant Complaint was frivolous and filed for the purpose of harassment. Consequently, the Administrative Law Judge finds that Complainant misused the ROC’s disciplinary process. [17] A review of the record provided by the Complainant shows an needless expenditure of time by the Complainant in attempting to impeach the credibility of Michael Keith and Thomas Walter based in part on the question of whether Keith was a consultant, employee, supervisor or had some other role (acting as a contractor) with respect to the corrective work to be done at the Complainant’s home. The fact is that Keith only prepared a report for the Respondent and was not even able to perform the necessary investigative (destructive) work. The tenacity of the Complainant based on his subjective conclusions by pursuing this line of inquiry did not impeach the witnesses or otherwise provide probative evidence on behalf of the Complainant. It did provide evidence of the Complainant’s susceptibility to becoming absorbed in secondary and tertiary details tending to needlessly misdirect the proceedings at the expense of the principal issue(s). [18] Although the ALJ is under the impression that the Complainant truly believes in the justice and propriety of his cause(s), for the reasons stated in this decision, the ALJ concludes many of the Complainant’s actions have been irresponsible and unreasonable within the context of what was to be accomplished in his case. [19] That the Respondent be revoked, or suspended until it performs the corrective work. [20] Review of the evidence in the instant case and the decisions of ALJ Halas in the initial and first Compliance hearings shows the Complainant was in part attempting to influence if not dictate the how, and the sequence of some of the corrective work. Under the circumstances, it is understandable that after more than three years of contention (beginning before the Complaint in 2002 to the decision of the appeal of the first Compliance Order in mid 2005), the Respondent had no reasonable expectation it would be allowed to perform corrective work in the manner determined by the Respondent, with the full cooperation of the Complainant.. This is not to say the Complainant’s concerns that the Respondent might not adequately determine the need for, or perform the necessary corrective work are totally unjustified. The suggestion that some walls might just be “mudded over” though possibly adequate under certain circumstances, may give one pause regarding the suitability of the proposed corrective work. However, the record indicates the Complainant’s requirements, “suggestions”, and when applicable, demands, were such that as time progressed they tended to hinder and obstruct any real progress toward accomplishing the work. With the further passage of time and the various legal and administrative actions taken by the Complainant, any reasonable likelihood that the Respondent could reach an agreement to actually accomplish the work, became a forlorn hope. Despite this, it was incumbent on the Respondent to take the initiative and make some offer by way of a detailed written or other recorded formal proposal (even if futile), to perform the necessary wok after the matter was remanded by Judge Lindberg. As it now appears, the Respondent seems to absolve itself by asserting the ROC had the obligation to take the first step in resolving the matter when the obligation still rested with the Respondent. [21] The Complainant already has such a case pending for breach of contract and breach of warranty of habitability. [22] It is noted the Complainant has alleged the Respondent is both. The evidence does not sustain the allegation. [23] Forty days (40) from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings. [24] The actual cost for engineering and permits was not satisfactorily established and absent any determination (destructive testing) of what the extent of the corrective work is to be, any cost estimate for the purpose of full restitution is impossible. The minimum is based Exhibit s C-4 and R-54 (Keith Report) in the amount of $11,937.05 for the walls, in addition to $2,900.00 for tile and carpet according to the testimony of Mr. Normandin. There was an independent estimate of $13,000.00 to $15,000.00 by Thomas Walter. This does not take into account any cost changes since the estimate by Keith because such cost changes change (possibly as much as 20%) were conjectural in light of the current slow down in construction. The Complainant’s submitted estimate of $13,800.00 from Brent Maupin (exhibit C-128) for merely determining the nature of and overseeing the repair, was prepared May 5, 2008 (two days prior to the last day of hearing). It appears to be another last minute attempt to continue the case by creating issues which could have and should have been raised earlier. In addition to its limited foundation, the hearsay is such in light of the complexity of the issue, that the exhibit cannot be given any weight.

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