ALJDEC decisions subject to certification as final

07F-2320-ROC-com · Registrar of Contractors · 2009-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 7, 2009 APPEARANCES: Complainant Jonathan Posner appeared on his own behalf. Vince Zajdzinsky appeared on behalf of Monkey Business. 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 hearing in this matter convened on July 7, 2009 at 1:30 p.m., pursuant to a Notice of Compliance Hearing issued by the Registrar of Contractors (“ROC”), to determine whether or not Respondent John Vincent Enterprises, Inc., doing business as Monkey Business (“Monkey Business”), “has failed to comply with the Registrar’s April 17, 2008 Order, absent unreasonable interference by Complainant.” Complainant Jonathan Posner appeared on his own behalf. Vince Zajdzinsky appeared on behalf of Monkey Business. 2. The initial hearing of this matter convened on March 5, 2008. Mr. Posner appeared on his own behalf. C. B. Rominger appeared on behalf of Monkey Business. 3. On March 19, 2008, the undersigned Administrative Law Judge issued an Administrative Law Judge Decision that set forth the following as a Recommended Order to the ROC: On the effective date of the Order entered in this matter, Monkey Business’ Class KB-02 license (No. 216799) shall be revoked. It is further recommended that if the ROC receives written proof that Monkey Business has paid for the Posners to hire a properly licensed contractor to correct the dragging of the pocket door on the T-mold, in an appropriate, effective, and workmanlike manner, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Monkey Business’ license shall be placed on disciplinary probation for a period of ninety (90) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter.

The Administrative Law Judge Decision further recommended that Monkey Business pay a $250.00 civil penalty to the ROC. 4. On April 17, 2008, the ROC adopted the Recommended Order in its entirety. The ROC’s April 17, 2008 Order set forth that the Order would become effective on May 27, 2008, that any request for rehearing be filed by May 22, 2008, and that any appeal to the Superior Court be filed by May 22, 2008. 5. On May 12, 2008, Monkey Business filed a Request for Reconsideration. On June 2, 2008, the undersigned Administrative Law Judge issued to the ROC an Order Recommending Denial of Request for Reconsideration. On June 27, 2008, the ROC issued an Order Denying Request for Rehearing. 6. On September 8, 2008, the ROC revoked Monkey Business’ contracting license. 7. On February 10, 2009, Mr. Posner submitted correspondence to the ROC indicating that the matter remains unresolved. On February 20, 2009, Monkey Business submitted correspondence to the ROC indicating that it has complied with the ROC’s April 17, 2008 Order to the best of its ability, and that Mr. Posner’s actions constitute a denial of access. 8. On March 23, 2009, the ROC issued an Order Setting Aside Revocation and Setting Compliance Hearing. 9. The credible evidence presented at the compliance hearing established that Monkey Business paid the $250.00 civil penalty on May 9, 2008. The credible evidence of record further established that Monkey Business obtained two bids for the corrective work, one in the amount of $175.00, and one in the amount of $175.89, and submitted those bids to Mr. Posner. On May 9, 2008, Monkey Business also tendered a check in the amount of $175.00 to Mr. Posner. 10. Mr. Posner testified that he received the check. However, he did not cash the check because he wanted to obtain his own estimates and hire a contractor of his choice. Mr. Posner acknowledged that he failed to obtain estimates for the corrective work, and had no valid justification for not doing so. 11. The Administrative Law Judge finds, based on the weight of the credible evidence presented at hearing, that Mr. Posner’s failure to obtain any estimates for the repair work created an impossibility of performance situation for Monkey Business. Monkey Business attempted in good faith to comply with the ROC’s April 17, 2008 Order by securing two estimates of its own, in light of the fact that Mr. Posner had not done so, and tendered a check to Mr. Posner in the amount of those estimates. Mr. Posner acknowledged his failure and testified that he “believes [Monkey Business’] intention was to comply.” CONCLUSIONS OF LAW 1. Mr. Posner has failed to sustain his burden of proving that Monkey Business failed to comply with the ROC’s April 17, 2008 Order, as Mr. Posner’s failure to obtain estimates for the corrective work, and failure to cash the check tendered by Monkey Business is tantamount to unreasonable interference with Monkey Business’ attempts at compliance. See Arizona Administrative Code Rule R2-19-119. 2. In view of Mr. Posner’s unreasonable interference with Monkey Business’ attempts at compliance and in accordance with the April 16, 2009 Notice of Compliance Hearing, it is determined that further disciplinary sanctions should not be imposed against Monkey Business’ Class KB-02 license, and that this matter should be closed. RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be closed in accordance with the March 23, 2009 Order of the ROC. 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, July 14, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of July, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

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