ALJDEC decisions subject to certification as final

05F-F0275-ROC · Registrar of Contractors · 2006-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2006

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president and qualifying party, Todd Brown (“Brown”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. The instant matter came on for hearing pursuant to a decision of the Registrar of Contractors to hold a compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. In this regard, the Registrar issued a Notice of Compliance Hearing, which provided that the instant compliance hearing shall be conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on October 19, 2005 and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing” (emphasis added).

2. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing.

3. The prior Decision and Order entered in this matter by the Registrar of Contractors was based on a default by Respondent, based on Respondent’s failure to file a timely answer to the filed Citation and Complaint. As a direct result of Respondent’s failure to file a timely answer to the filed Citation and Complaint, Respondent was deemed to have admitted all of the allegations contained in the Complaint filed by Complainant.

4. The October 19, 2005 Order of the Registrar required Respondent to perform “the corrective work set forth in the filed Complaint and in the Agency’s written directive” in order to avoid a revocation of its Class C- license.

5. The following salient facts were adduced at the hearing and are important to note:

a. The project in question involves a kitchen remodel project. b. The Complaint was filed with the Registrar of Contractors on or about June 29, 2005. Although the Complaint contains a lengthy narrative regarding the issues that Complainant believed constituted violations of the State’s Contracting laws, the primary issue revealed by said document involves Respondent’s failure to complete the project and the costs that Complainant expected to pay to have the project completed by others. The Complaint also references a claim that Brown assaulted Complainant on June 29, 2005. c. The police report from the June 29, 2005 assault incident was entered into evidence at the instant hearing as Respondent’s exhibit no. 11. Although the reporting police officer did not witness the altercation between Complainant and Brown, the report indicates the two versions of what occurred in Complainant’s home. Both versions of the incident agree that there was some type of altercation and heated argument between Complainant and Respondent. However, Brown and Complainant told conflicting stories regarding who was responsible for the incident. d. A review of Respondent’s exhibit no. 11 shows that Complainant advised the police officer that he was upset that Brown was not arrested and that Complainant stated “that he should have just fought with Todd and got it out of his system and then they would both be arrested.” The report also shows that both individuals were advised by the police officer “to separate and not have contact with each other.” The report further states that “Todd left the residence in his vehicle and advised that he would not return.” e. Undisputed evidence of record showed that Respondent never returned to Complainant’s residence after the assault incident described above. In fact, he did not even appear for the jobsite inspection convened after the Complaint was filed. Complainant testified at the instant hearing that Respondent was, in fact, prohibited from returning to his home, due to his concerns for his safety. f. Respondent did not respond to the Corrective Work Order issued by the assigned inspector and also did not return after the October 19, 2005 Decision and Order of the Registrar directed him to accomplish specified remedial work, in order to avoid the revocation of his license. g. Brown testified that due to his claim that Complainant assaulted him, he would not return to Complainant’s residence to complete the kitchen remodel project. h. Ultimately, Respondent filed a civil action against Complainant in the Flagstaff Justice Court, in case no. CV05-1210RA. Respondent sued for approximately $6,900.00 for unpaid balances that he claimed were due for his work on the project. After receiving Respondent’s lawsuit, Complainant filed a counterclaim seeking $14,923.70 in monetary damages against Respondent. Complainant’s counterclaim essentially cited the previously filed Registrar of Contractors’ Complaint and the Decision and Order issued by the Registrar. Complainant was further seeking a refund of all monies paid to Respondent and restitution for all money paid to others to correct Respondent’s work and complete the project. i. Brown testified that the trial in the civil case involved the same issues set forth in the Registrar of Contractors’ Complaint. Complainant even testified that he showed the judge in the civil court case the Registrar’s Order of October 19, 2005 and that he had an opportunity to advise the judge of all of the things that he believed Respondent had done wrong on the project in question. j. Uncontroverted evidence of record showed that the judge awarded a judgment to Complainant in the amount of $948.90 and Respondent has paid the judgment, via check to Complainant, dated April 5, 2006. k. Brown contends that the payment of the judgment, from the civil court case constitutes compliance with the Registrar’s Order. Complainant contends that the court judgment is insufficient and does not constitute compliance with the Registrar’s Order.

6. Neither party appealed the Decision and Order of the Registrar of Contractors. Due to the fact that there never was a hearing in the Registrar of Contractors’ Complaint, based on the failure of Respondent to file an Answer to the Citation and Complaint, the Registrar never had the benefit of reviewing all of the facts that would have come out at a hearing. In particular, the Registrar in issuing its Decision and Order did not have the benefit of hearing all of the facts regarding the assault incident on June 29, 2005, which made it impossible for these two individuals to have any further dealings with one another.

7. Based on the assault incident on June 29, 2005, Respondent was not going to return to Complainant’s home and moreover, Complainant testified that he was not going to allow Respondent back on his property. Thus, there existed an impossibility of performance with the terms and conditions set forth in the October 19, 2005 Order of the Registrar.

8. The civil court judge had an opportunity to review the issues of the Registrar of Contractors’ Complaint and to decide on a money resolution for said Complaint. As aforementioned, judgment was issued in favor of Complainant and Respondent has satisfied the monetary judgment.

9. Under all of the facts and circumstances presented herein, it is determined and held that the monetary judgment paid by Respondent is tantamount to Respondent’s compliance with the Registrar’s Order. Thus, the Registrar should deem this matter closed in accordance with the terms and conditions of the October 19, 2005 Order.

CONCLUSIONS OF LAW

The parties took their dispute to civil court and the civil court determined the amount of monetary damages that Complainant was entitled to receive, as a result of the facts surrounding the Complaint filed with the Registrar of Contractors. In light of the fact that there existed an impossibility for Respondent to perform any corrective work at Complainant’s home, due to the assault incident between Complainant and Brown, Respondent’s payment of the judgment from the civil court case is tantamount to Respondent’s compliance with the terms and conditions of the Registrar’s original Order in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is hereby recommended that the Registrar of Contractors find compliance with the October 19, 2005 Order entered in this matter and this Citation (no. F05-0275), together with the Complaint upon which it is based, be deemed closed.[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. Done this day, December 4, 2006

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

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

By ___________________________

----------------------- [1] The original Decision and Order entered in this matter required Respondent to pay a $500.00 civil penalty to the Registrar of Contractors and Respondent testified that same has already been paid and his proposed exhibit no. 14 shows the payment.

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