ALJDEC decisions subject to certification as final

03F-1125-ROC · Registrar of Contractors · 2003-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

FINDINGS Hearing in this matter convened on July 21, 2003, with the issues having been joined by the ANSWER AND MOTION TO DISMISS filed by Respondent Enterprise Floors L.L.C., License No. 179638, Class K-08, to the charges made in the CITATION AND COMPLAINT issued to Respondent on February 19, 2003 by the Registrar of Contractors. The CITATION AND COMPLAINT issued by the Registrar was based on the Complaint filed by Complainant Blue Star Roofing, Inc. on December 17, 2002 against "Enterprise Floors LLC / Mike & Tara Rafi aka Rafiei". The substance of the complaint made by Blue Star Roofing, Inc. was stated to be: Working out of scope by constructing and attempting to sell a home before occupying it less than a year. Wrongfully making a complaint[1] and filing for a recovery fund[2] against named roofing contractor. See video of attempted sale and verbal discloser [sic] of no problems with home.

When the complaint was not resolved, the Registrar's CITATION AND COMPLAINT was issued, charging Respondent License No. 179638, Class K-08 of Enterprise Floors L.L.C. with possible violations of A.R.S. §§ 32-1154.A.5, 7, and 17. Enterprise Floors L.L.C. is a limited liability company (in which Mr. and Mrs. Rafi are members) to which company License No. 179638 (for which Mrs. Rafi is qualifying party) was issued on November 4, 2002. (It must be noted that Complainant's complaint is not against, and the Registrar did not cite, Enterprise Carpet & Mattress Discounter Inc., a corporation in which Mr. and Mrs. Rafi were officers, and which corporation held License No. 122482, Class C-42, on which license Mrs. Rafi was qualifying party. That license, while in effect at all times relevant to the Rafis' construction of the residence in question, was canceled on November 4, 2002, when License No. 179638 was issued.) At hearing, Respondent's motion to dismiss was reconsidered by this tribunal, for two reasons: First, given the legally-preclusive effect of the final Decision and Order of the Registrar in Case No. 01-2867 (in which the Rafis had prevailed against Blue Star Roofing, Inc. on a workmanship complaint), and the Decision and Order issued by the Registrar on July 10, 2003 in Case No. RF03-0103 (in which the Rafis' Recovery Fund claim had been granted, but which order was not yet final, pending possible request for rehearing or appeal), it is now determined by the undersigned that principles of res judicata and estoppel now bar Complainant Blue Star Roofing, Inc. from re- litigating in this complaint or any complaint the subject matter of those now-determined cases. Second, the remaining factual allegations[3] of the instant complaint address circumstances and events which pre-date the issuance of License No. 179638 on November 4, 2002. Even assuming arguendo that all such alleged facts would be proven in favor of Complainant Blue Star Roofing, Inc., it is determined that such proof would not state a basis for any determination that License No. 179638, the only license cited in this case, has violated A.R.S. §§ 32-1154.A.5, 7, and 17.

CONCLUSION

Therefore, even on due consideration of the subject matter of the complaint herein in a light most favorable to Complainant, it is concluded by this tribunal that Respondent's MOTION TO DISMISS should nevertheless be granted.

RECOMMENDED ORDER

On the basis of the foregoing, the undersigned administrative law judge recommends to the Registrar of Contractors that Respondent's MOTION TO DISMISS be granted and the Citation in Case No. 03-1125, and the Complaint upon which it is based, be dismissed. Done this day, July 21, 2003.

______________________________________ Anthony Halas Administrative Law Judge

Copy mailed this ____ day of ______________, 2003 to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] See Case No. 01-2867 (Docket No. 01F-2867-ROC), now final. [2] See Case No. RF03-0103 (Docket No. 03F-RF0103-ROC), not yet final. [3] These allegations are that the Rafis improperly obtained License No. 122482, violated state tax laws in constructing their residence, and also lost their owner/occupant exemption from licensing requirements (and therefore exceeded the scope of License No. 122482 then in effect) by subsequently attempting to sell their residence less than one year from the date of the certificate of occupancy on March 15, 2002.

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