ALJDEC decisions subject to certification as final

07F-G2032-ROC-com · Registrar of Contractors · 2009-06-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2009 APPEARANCES: Taylor Development Company, LLC/J E T Development: James E. Taylor, Jr., member and qualifying party, and James E. Taylor, Sr., member, appeared pro per. Commercial General Development, LLC: Commercial General Development failed to appear either through authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in these matters, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The record indicates that the original hearing in these consolidated matters took place March 26, 2008. Prior to the presentation of any testimony or evidence, the parties concluded a settlement agreement and stipulated that their respective complaints be dismissed and the matters closed as settled. The essential terms of the settlement agreement were read into the record and set forth in the Administrative Law Judge’s recommended Decision and Order dated March 26, 2008. 2. By the terms of the settlement agreement, the parties agreed in pertinent part as follows: 3….a. Commercial General Development LLC, Respondent in Docket No. 07F-G2032-ROC and Complainant in Docket No. 08F- G0085-ROC (“Commercial”), shall remit to Taylor Development Company LLC dba J E T Development LLC, Complainant in Docket No. 07F-G2032-ROC and Respondent in Docket No. 08F-G0085-ROC (“J E T”), the total sum of Twenty-Two Thousand Dollars ($22,000.00) as follows: i. Seven Thousand Five Hundred Dollars ($7,500.00) on or before June 1, 2008; ii. Seven Thousand Five Hundred Dollars ($7,500.00) on or before August 1, 2008; and, iii. Seven Thousand Dollars ($7,000.00) on or before October 1, 2008. b. Payment of any of the above-referenced payments and/or any part thereof shall be made in the form of cashier’s check or other certified funds and shall be hand-delivered to J E T’s office located at 8147 N. 5th Street, Phoenix, AZ 85020. c. In the event Commercial fails to remit to J E T in a timely and proper fashion any of the above-referenced payments, the balance of the full settlement amount then outstanding shall immediately become due and payable to J E T. d. The parties agree that by entering into this settlement agreement they shall be deemed to have mutually withdrawn their respective complainants [sic] in Case Nos. G07- 2032 and G08-0085 and stipulate to the dismissal of those complaints. In addition, the parties agree that their entering into this settlement agreement constitutes a full settlement, release and waiver of any and all actual and/or potential claims or causes of action each party has and/or may have against the other party arising out of the subject matter of their respective complaints including, without limitation, those before the Registrar of Contractors, in civil court and/or any other court, forum and/or tribunal. The parties further agree that by this settlement agreement neither party acknowledges any responsibility for and/or fault arising out of the contract between the parties. 3. Based on the parties’ settlement agreement, the undersigned vacated the March 26, 2008 hearing and remanded the matters to the Registrar of Contractors (“ROC/Registrar”) for further appropriate action. 4. By Order of Closing dated April 14, 2008, the Registrar approved the settlement agreement between the parties, with a modification[1], and ordered that Case Nos. G07-2032 and G08-0085 be closed as settled. 5. The Registrar’s files in these consolidated matters revealed that the Registrar reopened both complaints pursuant to its February 19, 2009 Order Reopening Complaint. 6. The Registrar issued a Notice of Compliance Hearing (“Notice”) on March 24, 2009, as a result of an alleged breach of the referenced settlement agreement by Commercial General Development, LLC (“Commercial”) asserted by Taylor Development Company, LLC dba J E T Development (“J E T”). 7. These matters convened for hearing at the time, date and place set forth in the above-referenced Notice. 8. Pursuant to the Notice, this compliance hearing was being conducted “in order to determine whether Commercial…has complied with the terms set forth in the Settlement Agreement. If it is determined that Commercial…has failed to comply with the terms of the Settlement Agreement, its Class B-01 License No. 186421 may be subject to the immediate imposition of discipline.” 9. At the compliance hearing, James E. Taylor, Jr. (“Taylor, Jr.”) and James E. Taylor, Sr. (“Taylor, Sr.”) testified but submitted no exhibits. 10. Commercial failed to appear either through authorized representative or counsel. 11. Taylor, Jr. and Taylor, Sr. testified that Commercial has not paid any portion of the Twenty-Two Thousand Dollar (“$22,000.00) settlement amount on or before the agreed upon dates set forth in paragraph (3) of the settlement agreement, or at all. 12. Taylor, Jr. further testified that all efforts to contact Commercial regarding the outstanding balance due were unsuccessful. 13. A review of the licensing database maintained by the ROC indicates that Commercial’s license was suspended July 1 – 12, 2007, for nonrenewal, February 14 -25, 2008, for lack of bond, July 17 and September 22, 2008 until compliance with ROC Orders in cases 08-0288 and G08-0508, respectively, and revoked October 21, 2008 (M08-0984).

CONCLUSIONS OF LAW 1. The Registrar 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 it alleged non-compliance with the Registrar’s Order, J E T has the burden of proof and must establish by a preponderance of the evidence that Commercial has breached the parties’ settlement agreement. 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, J E T established that Commercial breached the parties’ settlement agreement by failing to remit to J E T any portion of the agreed to $22,000.00 settlement amount. It is determined that such proven breach warrants the imposition of disciplinary penalties against Commercial’s license at this time. 4. It is further determined and concluded that Commercial’s prior disciplinary revocation and two suspensions set forth in Finding of Fact 13 hereof, as well as the failure to act in good faith toward the consummation of the parties’ settlement agreement herein and failure to appear at the instant hearing, shall serve as factors in aggravation in this matter. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the Class B-01 license of Commercial be revoked.[2] Done this day, June 8, 2009.

_________________________ Brian E. Smith 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 ___________________________ ----------------------- [1] The Registrar noted that the settlement agreement provided that the parties agreed to the dismissal of their respective complaints. The Registrar modified the referenced Decision and Order to indicate that these complaints be “closed as settled.” [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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