ALJDEC decisions subject to certification as final

05F-G1258-ROC-com2 · Registrar of Contractors · 2008-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 24, 2008

APPEARANCES: Complainant, Anne Capizzi (“Anne”), appeared on her own behalf, via telephone. Respondent appeared through its president and qualifying party Joady Davis (“Joady”). 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, on March 21, 2008 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 10, 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, 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. Notwithstanding the language contained in the above-described Notice of Compliance Hearing, the March 10, 2006 Order of the Registrar was an Order to close the Complaint based on information the Agency had received, indicating that Complainants had requested the scheduled hearing to be vacated, due to reaching an agreement with Respondent that all repairs would be completed. Neither party appeared at a hearing to place the terms and conditions of the settlement onto the record.

4. Information in the Registrar’s file shows that on or about August 17, 2006 the Registrar received a request from Complainants to re-open their previously closed Complaint. On November 9, 2006 the Registrar issued an Order Reopening Complaint and Setting Compliance Hearing. The compliance hearing was set for early 2007 and prior to the scheduled compliance hearing date, the hearing was vacated due to the fact that the parties had informed the Office of Administrative Hearings that they had reached a settlement. Once again, the parties failed to appear for a hearing to place the terms of this new settlement onto the record and to have same incorporated into an Order of the Registrar of Contractors. On June 22, 2007 the Registrar issued another Order to close this matter. Nevertheless, once again on or about August 9, 2007 Anne requested that this matter be reopened, resulting in the setting of the instant compliance hearing.

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

a. Anne indicated that the only outstanding issue on her Complaint is the fading of the color on the exterior patio concrete, which was made to look like flagstone. b. Uncontroverted evidence of record established that the flagstone- like areas outside of the covered patio had faded and no longer matches in color the areas of faux flagstone under the patio cover. c. Evidence of record showed that on or about May 31, 2007 the parties had signed an agreement, wherein Respondent agreed to “re-color” the rear patio area and the work was to be completed within three (3) weeks. Both parties signed the agreement and thus, accepted the terms of said agreement. It was undisputed that the work was never performed. d. A variety of reasons tend to explain the failure of Respondent to have the work completed as promised. Notwithstanding the fact that the signed agreement required Respondent to complete the remedial work within three (3) weeks, Anne became concerned about monsoon season approaching and advised Respondent that she did not want the work performed until after the monsoon season was over (which would normally be sometime in mid September).[1] Next there were issues of access to the yard. Anne does not like to keep her gate unlocked and Respondent had considerable difficulty getting workers out to the site to check on the color and prepare for the remedial work, since Anne would not cooperate in leaving the gate open during normal business hours. Ultimately, communication broke down between the parties, leading to the instant compliance hearing.

e. According to Joady, Complainant insists on being present while the remedial work is performed and she only will allow the work to go forward either on a weekday evening or on Saturday. Joady asserts that her demands in this regard are unreasonable and he needed to have access to the yard during normal business hours, Monday through Friday. f. Joady asserts that Respondent was ready willing and able to get the remedial work accomplished, had Anne provided proper access.

6. The evidence presented at the hearing clearly shows that the work to be performed in the settlement agreement has not been accomplished. However, the unreasonable obstacles placed by Anne, effectively prevented Respondent from complying with the specific terms and conditions set forth in their signed settlement agreement.

7. This matter never went to hearing and thus, there is no Order of the Registrar requiring Respondent to do anything.

8. The remaining dispute between these parties has been going on for years. There needs to be finality to proceedings and for these parties that day has come. Anne failed to allow the work to proceed during the three (3) week window as set forth in their signed settlement agreement between the parties and then she later failed to provide unfettered access for Respondent during normal business hours. It is determined and held that under all of the facts and circumstances presented herein, Respondent cannot be held to have failed to comply with the signed settlement agreement or, for that matter, with the specific terms and conditions of any Order of the Registrar.

9. All of the facts presented herein militate for the conclusion that the Registrar of Contractors should once again, and with finality, close this matter without any finding of non-compliance by Respondent.

CONCLUSIONS OF LAW

Anne’s actions in denying Respondent reasonable and unfettered access to the exterior rear yard is deemed to constitute conduct which is tantamount to Respondent’s compliance with the settlement.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Registrar of Contractors issue an Order to close this matter.

Done this day, April 28, 2008

______________________________________ Mark A. Silver 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] Notwithstanding her request that Respondent wait until after the end of the normal monsoon season, she contacted the Registrar of Contractors on August 9,2007 (prior to the conclusion of the 2007 monsoon season) to advise that Respondent has not “followed through” with the signed agreement.

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