ALJDEC decisions subject to certification as final

06F-H0022-ROC · Registrar of Contractors · 2007-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 10 January 2007 APPEARANCES: Complainant: Mrs. Lupe Willsey, widow of Complainant Robert Willsey (appearances via video link from Kingman, AZ). Respondent: None. Others: William Redman, Inspector, Arizona Registrar of Contractors (appearances via video link from Kingman, AZ). 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 above-entitled case was called to hearing on 10 January 2007 at 1:15 PM at the Office of Administrative Hearings in Phoenix, Arizona, pursuant to a duly promulgated Notice Of Compliance Hearing issued to the parties by the ROC on 5 December 2006, “in order to determine whether Respondent substantially complied with the terms and conditions of the Decision and Order issued on 22 February 2006 and reconsider 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. A written settlement agreement dated 1 April 2006 setting forth a payment arrangement between the parties was reached after the conclusion of the original hearing in this matter, which the ROC incorporated into its Order of Closing dated 12 May 2006. The settlement provides, in pertinent part, as follows:

“I.D.P. Roofing and Robert Wolsey [sic] agree to these folowing [sic]: A) pay $200 to Mr. and Mrs. Wolsey, B) I.D.P. agrees to pay the balance of $800 making total of $1000, C) payment plan of $200 a week.

4. Uncontroverted evidence of record established that Respondent has paid only $200 of the $1000 total settlement amount since 1 April 2006. 5. Respondent failed to appear and, consequently, no evidence was presented in support of Respondent’s case. 6. Notice is hereby taken of the ROC’s official public records, which reveal that Respondent’s contracting license has been revoked since 5 June 2006. Such revocation does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing separate disciplinary orders. Moreover, Respondent’s existing license status must be considered when determining appropriate penalties in this case. 8. As aforementioned, the Notice of Compliance Hearing indicated 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, and then not complying with said settlement agreement. These facts are properly viewed as a matter in extreme aggravation.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar 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). 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). Complainant presented a prima facie case at the hearing and, in the face of Respondent’s default, 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 previously issued Orders of the ROC in this matter. 3. 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 DECISION It is recommended that Respondent’s Class C-42 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, January 29, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

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

Fidelis V. Garcia, Acting Director Registrar of Contractors 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