ALJDEC decisions subject to certification as final

05F-M2068-ROC-rhg · Registrar of Contractors · 2007-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 20, 2007 APPEARANCES: Complainants Rex and Paige Webb did not appear. Teresa Bussert appeared on behalf of Respondent Arizona Water Installation, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ 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 initial hearing in this matter convened on April 6, 2006 before Administrative Law Judge Marianne Bayardi, to address whether Respondent Arizona Water Installation, L.L.C. (“Arizona”) was subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), and/or (A)(23). Complainants Rex and Paige Webb appeared on their own behalf. Terry Hammond appeared on behalf of Arizona. Following the conclusion of the hearing, Administrative Law Judge Bayardi issued a Decision in which she concluded that Arizona violated A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), and (A)(23). As a result of the statutory violations, Administrative Law Judge Bayardi recommended to the Registrar of Contractors (“ROC”) that Arizona’s Class C-37R License (No. 198226) be placed on disciplinary probation for a period of sixty days. 2. On May 23, 2006, the ROC adopted Administrative Law Judge Bayardi’s Decision with modifications. The modifications included increasing the period of disciplinary probation from sixty days to one hundred and eighty days and ordering that Arizona pay a $300.00 civil penalty. 3. Thereafter, Arizona filed with the Maricopa County Superior Court a Complaint for Judicial Review of Administrative Decision. 4. On or about September 13, 2006, Judge Douglas L. Rayes granted Arizona’s Motion to Stay Disciplinary Probation. 5. On January 2, 2007, Judge Rayes issued a ruling on Arizona’s appeal. Judge Rayes ruled: 1) the decision that Arizona violated A.R.S. § 32-1154(A)(3) is contrary to law and is vacated; 2) the decision that Arizona violated A.R.S. § 32- 1154(A)(23) is not supported by substantial evidence and is vacated; and 3) that the Administrative Law Judge’s finding of “wrongful or fraudulent conduct” pursuant to A.R.S. § 32- 1154(A)(7) is contrary to law and is vacated. Judge Rayes concluded that the Administrative Law Judge’s finding of a violation by Arizona of A.R.S. § 32-1154(A)(2), is supported by the evidence and is not arbitrary or capricious. Judge Rayes vacated the ROC's punitive action against Arizona and remanded the matter to the ROC for a determination of an appropriate sanction against Arizona for its violation of A.R.S. § 32- 1154(A)(2). 6. On May 16, 2007, the ROC issued a Notice of Limited Hearing advising the parties that “a hearing upon the charges made in the Citation and Complaint” would convene on June 20, 2007 at 1:30 p.m.[1] On the date and at the time scheduled for the hearing, the Webbs did not appear. Teresa Bussert, member and qualifying party, appeared on behalf of Arizona. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of the Webbs, or the receipt of any information that would constitute good cause for their absence or delay. No such information was received. Therefore, the hearing proceeded in the Webbs’ absence. 7. Ms. Bussert testified that Arizona has resolved the underlying issues and asserted that discipline is not warranted as Arizona has paid the $300.00 civil penalty, that the sum has not been refunded to Arizona, and that Arizona has already served its term of probation. However, there is no independent evidence in the record that the ROC imposed the term of probation, and the issuance of the Stay would tend to indicate that such disciplinary action was not imposed, and a review of the ROC's website reveals that Arizona’s license history does not reflect any past disciplinary action. CONCLUSION OF LAW 1. Due to the limited scope of the rehearing and based upon the following: 1) Judge Rayes’ finding that Arizona violated A.R.S. § 32-1154(A)(2); 2) Judge Rayes’ remanding of the matter to the ROC in order to determine an appropriate sanction for such violation; 3) the Webbs’ failure to appear and present any argument in favor of an appropriate sanction; 4) Ms. Bussert’s assertion that Arizona has already complied with the initial Orders entered against it; and 5) the imposition of the Stay and the information contained on the ROC’s website as it pertains to Arizona’s license history, the Administrative Law Judge concludes that an appropriate disciplinary sanction to be imposed against Arizona for its violation of A.R.S. § 32- 1154(A)(2) is to place Arizona’s Class C-37R license (No. 198226) on disciplinary probation for a period of thirty (30) days. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that Arizona’s Class C- 37R license shall be placed on disciplinary probation for a period of thirty (30) days. 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 will be 40 days from the date of that certification. Done this day, June 26, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] This is an erroneous advisement as the matter was remanded to determine an appropriate sanction for Arizona’s violation of A.R.S. § 32-1154(A)(2).

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