ALJDEC decisions subject to certification as final

07F-F0215-ROC-com · Registrar of Contractors · 2009-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2009

APPEARANCES: Complainant was represented by his attorney, Tevis Reich, and Respondent was represented by its attorney, John Gliege. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, 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 instant matter came on for 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. In this regard, the Registrar issued a Notice of Compliance Hearing, which provided that the instant compliance hearing shall be conducted “in order to determine whether the parties have complied with the terms of the settlement agreement.” In addition, the Notice of Compliance Hearing also provided that “if it is determined that the Respondent has failed to comply with the terms of the settlement agreement, Respondent’s Class B- license…may be subject to the immediate imposition of discipline.”

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 between the parties. The terms of the settlement were read onto the record during the original hearing and the essential terms were also incorporated into the Order issued by the Registrar on April 28, 2008. Paragraph no. 2 of the Findings of Fact in the Decision and Order provided that Respondent was to pay $12,000.00 to Complainant on or before October 15, 2008. In addition, Respondent was required to make the necessary payment or payments directly to the office of Complainant’s attorney.

4. Undisputed evidence of record established that Respondent has failed to pay any portion of the $12,000.00.

5. Respondent’s qualifying party, Bill McKernan (“McKernan”) testified at the hearing. He indicated that he has not been able to make the necessary payment to Complainant due to a lack of work and a recent hospitalization that resulted in him taking nine (9) months off from work, in order to recover from the hospitalization event. Among other things, he testified that his hospitalization and recovery period caused him to lose a $40,000.00 project. Due to his lack of income he has also lost his home.

6. Although this tribunal is sympathetic to the economic issues that McKernan has suffered, it does not negate the terms of the original settlement agreement. Based on the foregoing, it is determined and held that Respondent failed to comply with the terms and conditions of the previously entered settlement agreement in this matter, which required Respondent to pay Complainant the sum of $12,000.00.

7. Based on the foregoing and in accordance with the Notice of Hearing issued in this matter, a disciplinary sanction against Respondent’s license is found to be appropriate.

. Based on a standing motion filed with Registrar of Contractors at the Office of Administrative Hearings, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary sanctions. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this compliance hearing.

CONCLUSIONS OF LAW

1. Respondent failed to comply with the terms and conditions set forth in the original Decision and Order issued in this matter.

2. In view of Respondent’s failure to accomplish compliance with the Order of the Registrar and in accordance with the April 28, 2008 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against Respondent’s Class B- license.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays or tenders the sum of $12,000.00 to Complainant 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 this Citation (no. F07-0215), together with the Complaint upon which it is based, shall be closed. 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, June 15, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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