ALJDEC decisions subject to certification as final

2008A-15733491-ROC · Registrar of Contractors · 2010-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: September 2, 2010 at 8:00 a.m. APPEARANCES: Complainant Richard Chase did not appear; Respondent Eurotech Decorative Concrete, L.L.C. appeared through members Ljeka Camaj and Suzan Camaj. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On March 8, 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC230315, Class C-9 for residential concrete contracting to Respondent Eurotech Decorative Concrete, L.L.C. On December 17, 2007, the Registrar received a complaint against Respondent from Complainant Richard Chase. The Registrar designated the complaint Case No. 08-1573. Complainant provided his mailing address as 1932 E. Salt Sage Dr., Phoenix, Arizona 85048. This was also the jobsite address. Eventually, the Registrar referred Case No. 08-1573 to the Office of Administrative Hearings (“the OAH”), an independent agency, to schedule and conduct a fair hearing. On January 27, 2009, a hearing was held before Administrative Law Judge (“ALJ”) Mark A. Silver of the OAH in Case No. 08-1573. The parties presented evidence. At the parties’ request, ALJ Silver called a recess to allow the parties to negotiate a settlement. After ALJ Silver reconvened the hearing, he stated the terms of the settlement on the record. The parties’ representatives on the record confirmed that ALJ Silver had accurately stated the terms of the settlement and that they had freely and voluntarily entered into the settlement. The terms of the settlement of Case No. 08-1573 were as follows:[1] 1) Respondent would pay all remaining amounts due to Complainant for the $8,871.23 judgment in Maricopa County Justice Court Case No. CC200722353588, starting with an initial payment of $1,500.00 on or before February 3, 2009, with payments in the amount of $500.00 on the 3rd of every month thereafter until the outstanding amount of the judgment was paid;

2) Respondent would inform Complainant if any payments were late; and

3) Complainant would remove the garnishment action that had garnished from Respondent’s checking account $889.79 and would withdraw the complaint to the Registrar.

On January 27, 2009, ALJ Silver recommended that the Registrar close Case No. 08-1573 as settled. On February 23, 2009, the Registrar accepted ALJ Silver’s recommendation and closed Case No. 08-1573 as settled. On March 19, 2010, the Registrar received a request for rehearing from Complainant, which alleged that Respondent had breached the settlement agreement by failing to make timely payments. Complainant provided the same address on the request for rehearing that he had provided on the complaint, 1932 E. Salt Sage Dr., Phoenix, Arizona 85048. On May 10, 2010, the Registrar issued an order in Case No. 08-1573, denying Complainant’s request for rehearing but setting a compliance hearing in the expedited course of docketing. The Registrar referred to the OAH the compliance hearing in Case No. 08- 1573, which had been renumbered as Case No. 2008-15733491. On July 14, 2010, the Registrar issued a Notice of Compliance Hearing, setting a compliance hearing on September 2, 2010 at 8:00 a.m. The Registrar mailed a copy of the Notice of Compliance Hearing to Complainant at 1932 E. Salt Sage Dr., Phoenix, Arizona 85048-9457. A compliance hearing was held on September 2, 2010. Respondent’s members, Suzan Camaj and Ljeka Camaj, testified and submitted seven exhibits. Although the beginning of the compliance hearing was delayed fifteen minutes to allow Complainant additional travel time, he did not appear, personally or through an attorney, or contact the OAH to request a continuance or that the start of the compliance hearing be further delayed. Complainant did not present any evidence to dispute Respondent’s evidence that it had substantially complied with the settlement agreement. Hearing Evidence On September 16, 2008, the court entered a judgment in Maricopa County Justice Court Case No. CC200722353588 against Respondent in the amount of $8,871.23, which included compensatory damages, attorney’s fees, and prejudgment interest. Prior to the hearing in Case No. 08-1573, on November 7, 2008, Complainant had garnished from Respondent’s business accounts the sums of $154.86 and $734.92. After the parties made the settlement at the hearing, Respondent paid the following amounts to Complainant by certified check or personal check drawn on Respondent’s business account: |Payment # |Date |Amount | |1 |January 30, 2009 |$1,500.00 | |2 |March 2, 2009 | | | | |500.00 | |3 |March 24, 2009 | | | | |500.00 | |4 |May 3, 2009 | | | | |500.00 | |5 |June 1, 2009 | | | | |500.00 | |6 |July 1, 2009 | | | | |500.00 | |7 |August 14, 2009 | | | | |500.00 | |8 |September 24, 2009 | | | | |500.00 | |9 |October 5, 2009 | | | | |500.00 | |10 |November 9, 2009 | | | | |500.00 | |11 |January 8, 2010 | 1,000.00| |12 |March 29, 2010 | | | | |989.00 | | | | $7,989.00| |TOTAL | | |

With the $889.79 that Complainant had obtained through the garnishment, Respondent paid Complainant a total of $8,878.78, slightly more than the amount of the judgment and the amount required by the settlement. Mrs. Camaj testified that Respondent’s business was slow in 2009 and 2010. Mrs. Camaj testified that she contacted Complainant and informed him that Respondent’s payments #7, 8, 9, 10, 11, and 12 would be late. Mrs. Camaj also testified that payment #11 was for December 2009 and January 2010. Complainant cashed all the checks that Respondent tendered. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The Notice of Compliance Hearing that the Registrar mailed to Complainant at the address that he provided on his complaint and request for rehearing was reasonable, and Complainant is deemed to have received the Notice of Compliance Hearing.[3] Respondent bears the burden of proof and must establish that it complied with the settlement by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Respondent established at the hearing that it paid Complainant slightly more than the amount it promised to pay in the settlement. Some of the payments were late. The late payments do not justify additional penalties because Respondent notified Complainant that payments would be late, as the settlement required, Respondent waived any objection to the late payments by cashing the checks,[6] and the Registrar cannot award interest or other relief for late payment of liquidated debts.[7] Therefore, Respondent established that it substantially complied with the settlement. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm its order closing as settled Complaint No. 2008-15733491 (formerly 08-1573) against Respondent’s Eurotech Decorative Concrete, L.L.C.’s License No. 230315, Class C-9. Done this day, September 14, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The settlement is set forth on the OAH digital audio record of the hearing in Case No. 08F-1573-ROC at approximately 1H34M. [2] See 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] See, e.g., Trimble v. American Savings Life Insurance Co., 152 Ariz. 548, 554, 733 P.2d 1131, 1137 (App. 1986). [7] Cf. A.R.S. § 12-347 (entitling court clerk to include in judgment costs and “interest on the verdict from the time it was rendered”).

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