ALJDEC decisions subject to certification as final

06F-G1836-ROC-com · Registrar of Contractors · 2008-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 21 February 2008 APPEARANCES: Complainant: Billy & Judy Clatterbuck, Complainants. Respondent: None. Others: Jim Hennessy, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ The Registrar of Contractors (“ROC”) ordered a Compliance Hearing held regarding the above-captioned case. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby issues the following Findings of Fact, Conclusions of Law, and Recommended Decision to the ROC.

FINDINGS OF FACT 1. The instant matter came to 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. Accordingly, the ROC issued a Notice of Compliance Hearing on 15 January 2008, which provided that the instant compliance hearing be conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on 5 April 2007 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. The original hearing in this matter resulted in a settlement agreement reached by the parties. The terms of the settlement were read into the record during the original hearing, the essential terms of which were incorporated into the Order issued by the ROC on 5 April 2007. Said essential terms provided, in pertinent part, that Respondent would pay Complainant $1,000.00 on or before 30 March 2007, and in turn, Complainant would withdraw his complaint against Respondent. 4. Uncontroverted evidence of record established that Respondent has not made payment of the $1,000.00 to Complainant in accordance with the terms of the settlement agreement described in Paragraph 3 above. 5. Respondent’s failure to appear for the scheduled hearing resulted in no evidence or testimony whatsoever being presented regarding Respondent’s compliance with the terms of the settlement agreement. 6. Notice is hereby taken of official ROC public records, which reveal that Respondent’s contracting license has been revoked since 10 January 2007. Such revocation does not preclude this tribunal from conducting these administrative proceedings, nor does it preclude the ROC from issuing separate disciplinary orders. Moreover, Respondent’s existing license status must be considered when determining appropriate penalties in this case. 7. The Notice of Compliance Hearing issued by the ROC states that disciplinary penalties may be issued against Respondent as a direct result of the instant Compliance hearing. The facts presented herein warrant the imposition of a disciplinary sanction against Respondent’s license for entering into a settlement agreement, which terminated prior license disciplinary proceedings, and then not complying with said settlement agreement. These facts are properly viewed as a matter in aggravation.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). Complainant has sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent has failed to comply with the terms and conditions of the previous Order of the ROC in this matter. Respondent’s failure to comply with the terms and conditions of the aforementioned Order warrants the imposition of a serious disciplinary sanction against Respondent’s license.

RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class C- license be revoked on the effective date of the Order entered in this matter. 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, March 6, 2008

______________________________________ Maurice McWhirter 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 ___________________________

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