ALJDEC decisions subject to certification as final

06F-L0271-ROC-com · Registrar of Contractors · 2007-06-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2007 APPEARANCES: Complainant: Leroy Bybee appeared, pro per. Respondent: Respondent failed to appear either by authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The record indicates that the original hearing took place August 2, 2006 before the undersigned. Prior to the presentation of any testimony or evidence, the parties concluded a settlement agreement and stipulated that the complaint be closed. The essential terms of that settlement agreement were read into the record and set forth in the undersigned Administrative Law Judge’s Decision and Order Vacating Hearing Based on Settlement Agreement dated August 2, 2006. 2. Based on the parties’ settlement agreement, the undersigned vacated the August 2, 2006 hearing and remanded the matter to the Registrar of Contractors for further appropriate action. 3. By Order of Closing dated August 11, 2006 (“Order”), the Registrar of Contractors (“ROC”) adopted the Administrative Law Judge’s Recommended Order and closed the matter as settled. The Order further provided that the “Citation and Complaint is subject to being reopened by the parties upon an allegation of failure to comply with the terms of the settlement.” 4. By the terms of the settlement agreement, the parties agreed as follows: a. Respondent shall pay to Complainant the sum of Two Thousand Dollars ($2,000.00) on or before the expiration of six (6) months from the date of the hearing or no later than 5:00 p.m., February 2, 2007. Payment of such sum shall be by minimum monthly installments of Three Hundred Thirty-three and 34/00 Dollars ($333.34) beginning on or before September 2, 2006 at 5:00 p.m. and continuing until paid in full. Respondent shall have a seven (7) day grace period, or until the ninth (9th) of each month, in which to remit that month’s payment upon twenty-four (24) hour written notice to Complainant. b. In the event Respondent fails to remit to Complainant any portion of said $2,000.00 sum by 5:00 p.m., February 2, 2007, Respondent shall pay Complainant the sum of Four Thousand Dollars ($4,000.00) on or before the expiration of six (6) months from February 2, 2007, or by 5:00 p.m. August 2, 2007. Said Four Thousand Dollars ($4,000.00) shall consist of an additional Two Thousand Dollars ($2,000.00) plus any outstanding balance of the initial Two Thousand Dollars ($2,000.00) remaining due and unpaid as of February 2, 2007. c. Should Respondent fail to remit to Complainant any portion of said Four Thousand Dollars ($4,000.00) by 5:00 p.m., August 2, 2007, then, in such event, Respondent’s license shall be immediately suspended until the entire outstanding balance due Complainant hereunder is paid in full. d. All payments referred to in paragraphs 3 (a) and (b) above shall be made by cashier’s check and/or other certified funds and hand- delivered to Complainant at his residence at 2164 Sanwood Dr., Lake Havasu City, Arizona or to his son, Ron Bybee, at his residence located at 2225 Huntington Dr., Lake Havasu City, Arizona. e. The parties shall give each other at least twenty-four (24) hour written notice of the intent to deliver a payment and/or of their unavailability for the delivery of such payment. f. Upon Respondent’s remitting the entire amount due Complainant hereunder pursuant to subparagraph (b) or (c) above, as applicable, Respondent shall notify the Registrar of Contractors and the Office of Administrative Hearings in writing of such compliance. 5. On November 13, 2006, Complainant filed a letter with the Registrar of Contractors wherein he advised, inter alia, that “[Respondent] has breached the settlement contract set forth before Administrative Law Judge Brian E. Smith in August of this year. The monthly payment of $333.34 has not been paid for November 2006….[and] I would like to have the settlement agreement enforced at this time.” 6. On February 7, 2007, the Registrar issued its Order Reopening Complaint and Setting Compliance Hearing. 7. The Registrar issued a Notice of Compliance Hearing (“Notice”) on April 30, 2007 and a Notice of Correction of Clerical Error on May 1, 2007 and the hearing convened at the time, date and place set forth therein.[1] 8. Pursuant to the Registrar’s Notice, this compliance hearing was being conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on August 11, 2006, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 9. At the compliance hearing, Complainant testified and submitted Exhibit A which was marked, admitted and considered. Complainant’s son, Ron Bybee (“R. Bybee”), and Monika Seidel (“Seidel) also testified on behalf of Complainant. 10. Complainant testified that Respondent made the first two (2) payments after the actual due dates of September 2nd and October 2nd but before the expiration of the seven day grace period. Respondent did not provide Complainant with a seven day written notice regarding these payments as required by the settlement agreement. 11. Respondent failed to timely remit the third payment due November 2, 2006 and failed to provide the requisite written twenty- four (24) hour notice to avail itself of the seven (7) day grace period with regard to the third payment. 12. Complainant further testified that he made several efforts to contact Respondent’s representatives but was unsuccessful. 13. On or about November 18, 2006, Respondent’s representative, Brad, contacted Complainant and related that Respondent would pay the entire $2,000.00 due upon the expiration of the settlement agreement’s six month term. 14. R. Bybee testified that Respondent’s representative, Brad, telephoned on November 18, 2006 to advise that he had the third payment. R. Bybee contacted Complainant who advised that he did not want to accept this late payment and wanted to proceed with a compliance hearing. 15. Since November 2006 Respondent has not remitted nor attempted to remit any additional payments to Complainant under the settlement agreement. 16. A review of the licensing database maintained by the Registrar of Contractors indicates that Respondent’s Class KB-02 (Dual Residence and Small Commercial) license, No. 190041, was revoked May 11, 2007 (L06-0507) and May 17, 2007 (L07-0190).

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. §32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. §32- 1154. 2. Since he alleged non-compliance with the Registrar’s Order, Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994); Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Based on the evidence elicited at the hearing, it is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent did not comply with the parties’ August 2, 2006 settlement agreement by remitting the third payment due thereunder on or before November 9, 2006, including the seven day grace period. Pursuant to the terms of the settlement agreement, Respondent is obligated to remit to Complainant the total sum of $4,000.00 less $666.68, or $3,333.32, due to its failure to remit the third payment. 4. In view of Respondent’s failure to accomplish substantial compliance with the August 2, 2006 settlement agreement and Registrar of Contractors’ August 11, 2006 Order, it is determined that the proven breach by Respondent of the parties’ settlement agreement suggest a determination that Respondent violated A.R.S. §32-1154A 7 and that such violation warrants the imposition of disciplinary penalties against Respondent’s license at this time in this matter. 5. This tribunal further determines and concludes that the two prior revocations of Respondent’s license (L06-0507 and L07-0190) shall serve as factors in aggravation in this matter. 6. This tribunal further determines and concludes that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith in response to the settlement agreement it entered with Complainant. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing in this matter without legal or reasonable excuse. ... … … … RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that Respondent’s Class KB- license No. 190041 be revoked on the effective date of the Order entered in this matter.[2] Done this day, June 19, 2007.

_______________________ Brian E. Smith 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 ________________________ ----------------------- [1] It must be noted that on May 30, 2007, Respondent, by and through Brian Marble, filed with the Registrar of Contractors an “Urgent Request for Continuance” wherein it was related that “[q]ualifying party or any Representatives will not be able to appear to present evidence or rebutal [sic] due to medical issues requiring QP to be either at doctors [sic] office or hospital. (Problem inguenel [sic] hernia of intestines)” (“motion”). The Office received the motion on May 31, 2007. Based on the untimeliness thereof, the undersigned directed OAH Case Management to contact Respondent by telephone to advise that the motion would be denied. [2] 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.

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