ALJDEC decisions subject to certification as final

07F-H0221-ROC-com · Registrar of Contractors · 2010-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: April 22, 2010 APPEARANCES: Deborah Stair appeared personally. Cobalt Enterprises, Inc., doing business as Cobalt Construction, was represented by its attorney, Robert H. Brooks, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Pursuant to the Notice of Compliance Hearing issued by the Registrar of Contractors (“Registrar”) in Case No. H07-0221, this matter came on for a compliance hearing before the Office of Administrative Hearings, an independent agency. The scope of the compliance hearing was “to determine whether or not Complainant has unreasonably denied Respondent access to comply with the terms of the Registrar’s March 12, 2009 Order or whether or not Respondent has failed to comply with the Registrar’s written directives, absent unreasonable interference on the part of Complainant.” Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order on Compliance:

FINDINGS OF FACT 1. The Registrar’s March 12, 2009 Order required Cobalt Enterprises, Inc. (“Respondent”) to fully comply with the December 13, 2006 agreement between Respondent and Deborah Stair (“Complainant”). That agreement required Respondent to perform agreed upon remedial repairs at Complainant’s residence. 2. The Administrative Law Judge Decision for Case No. H07-0221, as adopted by the Registrar, found that Complainant had previously denied Respondent access to her property necessary to permit Respondent to comply with the parties’ December 13, 2006 agreement and the Corrective Work Order issued in that case. 3. By letter dated March 16, 2009, Respondent wrote the following to Complainant seeking access to comply with the December 13, 2006 agreement: We are available any time after March 20, 2009 to comply with the corrective work order issued December 13, 2006.

Please sign and return this letter with an indication of what date is most convenient for you to allow us to comply with this work order.

4. Respondent’s March 16, 2009 letter was sent to Complainant at her address of record. The letter was received by an individual at Complainant’s residence on March 17, 2009. Complainant did not respond to that letter. 5. By letter dated March 30, 2009, Respondent advised the Registrar’s Legal Department that Respondent had attempted to gain access to Complainant’s property to perform the required remedial repairs, but Respondent had not received permission from Complainant. Respondent included a copy of its March 16, 2009 letter to Complainant in its letter to the Registrar. 6. By letter dated April 3, 2009, Respondent wrote the following to Complainant’s attorney of record, Michael J. Dergo: Please find the attached notice sent to your client by certified mail on 3/16/09. This letter was received on 3/17/09.

The letter was requesting access to her property to comply with the December 13, 2006 agreement per the Order from the Administrative Law Judge dated 2/13/09. As of today, we still have not received a response from your client.

At this time we are requesting a response from your client with instruction on what she would like us to do. We have until 4/22/09 to comply with this order. A prompt response would be greatly appreciated.

7. By letter dated April 8, 2009, Respondent wrote the following to Mr. Dergo: As of today I still have not heard back from you or your client in regards to our request for access to her property.

At this time I am requesting that you please respond to me no later than April 13, 2009 [sic]. This response date is necessary and reasonable, as I do need an ample amount of time to complete the job per the order. (My original request to your client was on 3/16/09 which she received on 3/17/09).

If I do not hear anything from you or your client by this date, it is reasonable for me to assume that she is continuing to deny us access to the property.

8. By letter dated April 10, 2009, Respondent updated the Registrar’s Legal Department as to Respondent’s attempts to obtain access to Complainant’s property. 9. By letter dated April 14, 2009, Respondent wrote to Complainant’s new attorney, Frank Waters, once again requesting access to Complainant’s property. 10. By letter dated April 14, 2009, Respondent advised the Registrar’s Legal Department of its April 14, 2009 request to Complainant’s attorney for access to Complainant’s property. 11. By letter dated April 17, 2009 to the Registrar, Respondent requested “that this matter be dismissed and that our license not be suspended as we have complied, to the best of our efforts, with the court’s order.” (Emphasis in the original). 12. By letter dated April 23, 2009, Respondent’s counsel wrote the following to Complainant’s counsel: This firm represents Cobalt in connection with the above referenced matter. It is my understanding that Mr. Waters contacted Cobalt today demanding a copy of the Registrar’s Order and the ALJ’s Decision in this case. It is also my understanding that Mr. Waters indicated that if Cobalt did not comply with his demand that he would contact the ROC to notify them that Cobalt was somehow non-compliant with the Order. I am somewhat perplexed at how this position could be taken by Mr. Waters as your firm has been provided with numerous requests from Cobalt for your client’s cooperation in complying with the requirements of the Order…

13. By letter dated April 28, 2009, Complainant advised the Registrar’s Legal Department, among other things, of the following: I did however receive several letters from Cobalt, requesting access to my property to follow corrective work orders, as per ordered on December 13, 2006. I ignored these letters because they were not in response to the January hearing.

14. By letter dated May 20, 2009, Respondent wrote a response to Complainant’s April 28, 2009, to the Registrar. Respondent provided a timeline of its attempts to comply with the Registrar’s Order. 15. At the compliance hearing, the Registrar’s assigned inspector, Bill Redman, opined that Respondent had been denied access by Complainant, which access was necessary for Respondent to comply with the December 13, 2006 agreement. 16. Complainant’s testimony that she did not deny Respondent access to comply with the Registrar’s March 12, 2009 Order is not deemed credible. Respondent made numerous attempts to obtain access to Complainant’s property, and Complainant unreasonably denied Respondent access. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. The Administrative Law Judge concludes that Complainant unreasonably and without legal justification denied Respondent access to her property, thereby preventing Respondent from complying with the Registrar’s Order requiring Respondent to perform remedial repairs as a condition to avoid suspension of its contracting license. Complainant has exhibited a continuing pattern of denial of access in this matter. RECOMMENDED ORDER ON COMPLIANCE The Citation and Complaint in Case No. H07-0221 shall be immediately 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 will be 40 days from the date of that certification. Done this day, May 10, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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