ALJDEC decisions subject to certification as final

08F-2378-ROC · Registrar of Contractors · 2008-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2008 APPEARANCES: Complainant was represented by her attorney, Stewart Gross and Respondent was represented by its attorney, Ryan Skiver. 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. At the outset of the scheduled hearing, Respondent filed a motion to dismiss, essentially arguing that the matter presented was outside the purview of the Registrar of Contractors and that the charged sections of the State’s Contracting laws have no application to the facts presented in the instant Complaint. The parties presented their respective positions on the motion and the motion was taken under advisement by this Tribunal.

2. The fact surrounding this case are not in dispute and the parties stipulated to the following:

a. Respondent acted as a contractor on a construction project performed for Complainant. Apparently, Respondent was retained by a company known as “A Studio Ventures, LLC. (“Studio”). b. When Respondent did not receive certain payments for its work on the project in question, Respondent filed a civil action in Superior Court against both Complainant and Studio. c. Complainant had filed a prior Registrar of Contractors’ Complaint against Respondent, citing poor workmanship. d. The parties in the civil action agreed to a dismissal of the Superior Court case. As part of the agreement to dismiss the civil case, Complainant agreed to withdraw her prior Registrar of Contractors’ Complaint. e. Notwithstanding the agreement to dismiss the above-described civil case, Complainant sought an award of attorney fees. On or about January 9, 2008, the court entered a judgment solely awarding Complainant her attorney fees and costs, in the amount of $8,522.50 for attorney fees, $240.00 in costs, and each to have interest applied at the rate of ten percent (10%) per annum from date of judgment until paid. There was no other award of monetary damages. f. When Respondent failed to pay the judgment for attorney fees and costs, Complainant filed the instant Complaint with the Registrar of Contractors. The instant Complaint was prepared by Complainant’s attorney’s office and recites the fact that Respondent has failed to pay the judgment for attorney fees and costs. The Complaint requests that the Registrar of Contractors “take the appropriate action against Respondent’s license” for failing to pay the civil court judgment for attorney fees. g. Based on the facts presented in the filed Complaint, the Registrar of Contractors charged Respondent with possible violations of A.R.S. §32-1154A (11) and (7).

3. Based on the foregoing uncontroverted facts and the conclusions of law set forth below, it is determined and held that this matter is not within the purview of the Registrar of Contractors and should be dismissed.

CONCLUSIONS OF LAW

1. A.R.S. §32-1154A (11) provides, in pertinent part that the holder of a license shall not fail “to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor…”(emphasis added). For this section of the State’s Contracting laws to have any application to the facts presented herein, Complainant would have had to provide Respondent with materials or she would have had to perform construction related services for Respondent. Since Complainant did not provide Respondent with any materials and she did not perform any construction related services for Respondent, this section of the State’s Contracting laws simply has no application to the facts presented herein.

2. A.R.S. §32-1154A (7) provides, in pertinent part, that the holder of a license shall not commit “a wrongful or fraudulent act…as a contractor resulting in another person being substantially injured” (emphasis added). The instant matter involves a civil judgment against Respondent solely for attorney fees and court costs. The Registrar of Contractors, acting through an administrative license disciplinary hearing involving private parties, does not have the authority to award attorney fees or costs. Moreover, under the facts and circumstances presented herein, the failure of Respondent to pay a civil judgment relating solely to attorney fees and costs does not constitute action or lack of action by Respondent “as a contractor.” The facts presented herein simply fail to establish any wrongful or fraudulent contractor conduct by Respondent.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. 08-2378), together with the Complaint upon which it is based, be dismissed. Done this day, October 20, 2008.

____________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 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