ALJDEC decisions subject to certification as final

05F-1858-ROC-com · Registrar of Contractors · 2007-09-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 2007 APPEARANCES: Complainant: Linda Koltonow appeared, pro per. Respondent: Respondent failed to appear either personally or by authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The record indicates that the original hearing took place December 5, 2005 before Administrative Law Judge Barth. Prior to the presentation of any testimony or evidence, the parties concluded a settlement agreement and stipulated that the complaint be closed. The essential terms of that settlement agreement were read into the record and set forth in Exhibit “A” which was attached to Judge Barth’s Order Vacating Hearing dated December 5, 2005. 2. Based on the parties’ settlement agreement, Administrative Law Judge Barth vacated the December 5, 2005 hearing and remanded the matter to the Registrar of Contractors for further appropriate action. 3. By Order of Closing dated January 6, 2006 (“Order”), the Registrar of Contractors (“ROC”) adopted the Administrative Law Judge’s Recommended Order and closed the matter as settled. The Order further provided that the “Citation and Complaint is subject to being reopened by the parties upon an allegation of failure to comply with the terms of the Settlement Agreement.” 4. By the terms of the settlement agreement, the parties agreed, in pertinent part, as follows: “Respondent agrees to pay the sum of $5000 to the complainant. The amount to be paid as follows: $300 per month beginning Jan. 15, 2006 until the entire sum is paid in full.” 5. On April 12, 2006, Complainant filed a correspondence with the Registrar of Contractors wherein she alleged that “Mr. Roberts has defaulted on his payment to start Jan. 1, 2006. he [sic] is not returning phone calls. I would like to reopen the case…” 6. On April 28, 2006, the ROC issued its notice of Complainant’s claim of a breach of settlement agreement. 7. On October 4, 2006, Complainant filed a second correspondence with Registrar of Contractors wherein she again advised that Respondent “has still not replied regarding his default in his payment plan as of January 1, 2006.” 8. On October 2, 2006, the ROC issued a second notice of Complainant’s claim of a breach of settlement agreement. 9. On November 28, 2006, the Registrar of Contractors issued its Order Reopening Complaint and Setting Compliance Hearing (“Order Reopening”). 10. The ROC issued its Notice of Compliance Hearing (“Notice”) on August 20, 2007 and the hearing convened at the time, date and place set forth therein. 11. Pursuant to the Registrar’s Notice, this compliance hearing was being conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on January 6, 2006, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 12. At the compliance hearing, Complainant Linda Koltonow (“Complainant”) testified but presented no exhibits. 13. Respondent failed to appear at the compliance hearing either personally or by authorized representative or counsel. 14. Complainant testified that Respondent failed to make any payments to her as required under the subject settlement agreement. Complainant further testified that Respondent has not contacted her in any fashion regarding his obligations under that agreement. 15. A review of the database maintained by the Registrar of Contractors indicates that Respondent’s Class K-11 contractor’s license, number 151411, was suspended November 13, 2006 for lack of bond and cancelled February 4, 2007.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. §32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. §32- 1154. 2. Since she alleged non-compliance with the Registrar’s Order, Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994); Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Based on the evidence elicited at the hearing, it is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent failed to comply in any fashion with the parties’ settlement agreement by remitting no payments to Complainant as provided for therein. 4. In view of Respondent’s failure to accomplish any compliance with the December 5, 2005 settlement agreement and Registrar of Contractors’ January 6, 2006 Order, it is determined that the proven breach by Respondent of the parties’ settlement agreement suggest a determination that Respondent violated A.R.S. §32-1154A (7) and that such violation warrants the imposition of disciplinary penalties against Respondent’s license at this time in this matter. 5. This tribunal further determines and concludes that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith in response to the settlement agreement he entered with Complainant. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing in this matter without legal or reasonable excuse.

RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that Respondent’s Class K- license No. 151411 be revoked on the effective date of the Order entered in this matter.[1] Done this day, September 20, 2007.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ________________________ ----------------------- [1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

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