ALJDEC decisions subject to certification as final

2008A-805583-ROC · Registrar of Contractors · 2011-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 26, 2011

APPEARANCES: Complainant appeared by telephone and was represented by attorney Ken Gregory; no one appeared on behalf of Respondent.

WITNESSES: Ken Randall, Complainant Jim Roundtree, Consultant

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant requested a compliance hearing to show that Respondent is not in compliance with an Order of Closing issued by the Registrar of Contractors. That Order accepted a settlement that required Respondent to correct a block wall and pay $400.00 in restitution to Complainant. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On July 10, 2008, the Registrar of Contractors (“ROC”) issued an Order of Closing adopting an Administrative Law Judge’s Order Vacating Hearing due to notice of settlement of the case.[1] The parties had settled the matter by entering into a written Settlement Agreement and Release (“Settlement Agreement”) calling for Respondent to rebuild a block and wrought iron wall that he had damaged and to pay $400.00 to Complainant.[2] In March 2009, Complainant contacted the ROC and alleged that the restitution had not been paid and the remedial work had been only partially completed and then abandoned. In April 2011, the ROC set the matter for compliance hearing. Introduction The Notice for the compliance hearing presents the issue of whether or not Respondent has complied with the Settlement Agreement. The ROC points out that the Citation and Complaint and Order of Closing for the underlying case were issued under the former version of A.R.S. § 32- 1154(A)(7) which prohibited wrongful acts. Breach of a settlement agreement is a wrongful act. Therefore, the issue for this compliance hearing is whether Respondent breached the Settlement Agreement. If so, Respondent may be disciplined. This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the compliance hearing request filed by Complainant. Also admitted were Complainant’s Exhibits C-1 (Settlement Agreement) and C-2 (photograph). Complainant presented brief testimony from himself and Jim Roundtree at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding Respondent to be out of compliance with the Settlement Agreement and recommending provisional revocation. FINDINGS OF FACT 1. Respondent is the holder of license C-31.189472-R, a specialty residential contracting license issued by the ROC. The license authorizes Respondent to perform masonry work for residential projects. Steven Frank Lujan is the sole proprietor and Qualifying Party. That license expired on October 1, 2010 after non-renewal for one year. 2. Respondent is also the holder of license C-9.171511-R, a specialty residential contracting license that authorizes Respondent to perform concrete work for residential projects. That license expired on February 1, 2011 after non-renewal for one year. 3. Complainant testified that Respondent re-built the wall, but did not finish the job by cleaning up the debris left by the work. He also testified that Respondent did not pay the $400.00 called for by the Settlement Agreement. 4. James Roundtree testified that he was a licensed contractor in Arizona for 10 years, but his license is currently cancelled. He visited the jobsite and verified the lack of clean-up by Respondent.[3] He estimated that the cleanup will cost between $200 to $300 dollars to get done. This tribunal finds that $250.00 is the appropriate amount for the cleanup work. 5. Complainant’s evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Since Complainant sought the compliance hearing, Complainant bears the burden of showing, by a preponderance of evidence, that Respondent failed to comply with the Settlement Agreement acknowledged by the ROC.[6] Complainant has met that burden. 2. As the evidence shows, Respondent did not fully comply with the Settlement Agreement and is in breach of that agreement. Therefore, Respondent has violated A.R.S. § 32-1154(A)(7) by engaging in wrongful conduct. 3. Respondent’s licenses are currently expired. Pursuant to A.R.S. § 32-1154(C), the expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license further. Therefore, this tribunal and the ROC have the power and authority to discipline Respondent’s licenses. 4. Respondent should be given one last chance to comply with the Settlement Agreement by paying Complainant $650.00 ($250.00 plus $400.00). If Respondent does not pay the full amount, his licenses should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that licenses C-31.189472-R and C-9.171511-R, both held by Steven Frank Lujan dba King Concrete, be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of payment to Complainant of $650.00, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocations shall not take place and compliance cases 2008-805583 (formerly H08-0080) and 2008-[number redacted] (formerly H08-0080W) 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 will be 40 days from the date of that certification.

Done this day, June 14, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This matter has always proceeded as one case under two case numbers (H08-0880 and H08-0880W), now designated as 2008A-805583-ROC and 2008A- [number redacted]-ROC, respectively, that correspond to the two licenses at issue. This tribunal will take the same approach: one complaint, two licenses at issue. [2] A copy of the Settlement Agreement and Release was filed with the ROC on May 27, 2009. [3] See Exhibit C-2. [4] Arizona Administrative Code (A.A.C.) R2-19-119(B). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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