ALJDEC decisions subject to certification as final

05F-G1196-ROC-com · Registrar of Contractors · 2007-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2007 APPEARANCES: Complainant failed to appear and Respondent appeared through its qualifying party and corporate secretary, Chris Cataldo (“Cataldo”). 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 March 2, 2006, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.”

2. Based on the foregoing, this Tribunal indicated 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. In regard to the failure of Complainant to appear for the scheduled hearing, it was noted that she was represented by her attorney/husband, David Shapiro (“Shapiro). A review of the file in this Compliance matter reveals that the scheduled hearing has been continued twice, the last time based on Complainant’s motion, filed with the Office of Administrative Hearings on February 13, 2007 (some two months prior to the instant hearing date). The February 21, 2007 Order Granting Continuance, issued by this Tribunal, was mailed to the same address for Shapiro, as was used on the January 18, 2007 Order Granting Continuance, setting the date in March, which Complainant objected to.

4. A further review of Office of Administrative Hearings’ system records on this matter failed to show any phone calls from Shapiro or Complainant after the February 21, 2007 Order Granting Continuance was issued. Thus, it is assumed that Complainant’s attorney received said notice, otherwise it would be expected that he, or Complainant, would have called to inquire about the outcome of the motion to continue and what the new hearing date would be. There was no good or adequate cause found for Complainant’s failure to appear for the hearing and thus, the hearing was conducted without her or her attorney being present.

5. The original Order issued by the Registrar in this matter specifically provided, in pertinent part, that Respondent was required to pay Complainant the sum of $8,245.50. However, by way of a condition precedent, Complainant was required to “turn over to Respondent the working drawings, along with any and all copies of said drawings…” Based on this condition precedent, the Order further provided that “any failure by Complainant to comply with this condition precedent shall be deemed to relieve Respondent of any responsibility to pay the $8,245.50 to Complainant.”

6. Subsequent to the effective date of the Order entered in this matter, the parties filed numerous communications with the office of the Registrar of Contractors, regarding the issue of whether or not Complainant complied with the above-described condition precedent and ultimately the Registrar determined that the dispute regarding this aspect of the compliance issue must be determined at a hearing on the merits.

7. Cataldo testified that on or about March 22, 2006, Respondent received a set of plans from Complainant. According to Cataldo, the set they received looked to be a copy of the original documents provided to Complainant. He showed the set of plans to the person that prepared the original plans, provided to Complainant, and was advised that the plans in the possession of Respondent were not the original drawings.

8. Steve Henrichs (“Henrichs”), an associate designer for Respondent, also appeared at the hearing and provided testimony. Henrichs testified that he was in Respondent’s office when the plans were returned by Complainant arrived. He states that he examined the plans and could tell that they were not the original drawings.

9. Paragraph 4 (s) of the original Decision and Order, entered in this matter, indicated that “Complainant currently has the working drawings in her possession.” This finding was never contested by either a request for rehearing or an appeal to the Superior Court. Thus, this language became part of the final Order entered in this matter. Moreover, a review of the language set forth in the Recommended Order portion of said Decision and Order clearly indicates that Complainant must turn over to Respondent not only the original working plans in her possession, but also any copies of same that she may have made.

10. By her failure to appear for the instant Compliance hearing, Complainant failed to present any evidence or testimony to show that she either returned the original working drawings or, if not, why she failed to comply with the clear intent of the condition precedent set forth in the Order issued by the Registrar of Contractors, which required her to return to Respondent the original plans, plus any copies, before Respondent would have any obligation to pay her $8, 245.50.

11. The evidence of record established that Complainant failed to comply with the above-described condition precedent, included in the Registrar’s Order of March 2, 2006. This failure by Complainant effectively relieved Respondent of the condition requiring it to pay Complainant the sum of $8,245.50, thereby militating for the conclusion that there is no basis to determine that Respondent has failed to comply with the original Decision and Order entered in this matter. Thus, this case should be closed.

CONCLUSIONS OF LAW

The facts presented herein support a finding that there has been no non-compliance by Respondent with the terms and conditions of the original Decision and Order entered in this matter, thereby justifying a closing of this case.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation (no. G05-1196), together with the Complaint upon which it is based, shall be closed. 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, April 23, 2007.

______________________________________ Mark A. Silver 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 ___________________________

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