ALJDEC decisions subject to certification as final

2009A-51000006-ROC · Registrar of Contractors · 2011-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: August 10, 2011, at 1:00 p.m. APPEARANCES: Complainant Jungle 168, L.L.C. did not appear; Respondent Pacificspan, L.L.C. dba Pacificspan Construction and Development appeared through John Lee, its qualifying party and a member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In February 2008, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC242809, Class B-1 for commercial general contracting to Pacificspan, L.L.C. doing business as (“dba”) Pacificspan Construction and Development (“Respondent”). Jungle 168, L.L.C. (“Complainant”) is the owner/operator of Jungle Buffet Restaurant at 1749 West Hunt Highway #101, Queen Creek, Arizona. On March 15, 2009, the Registrar received a complaint from Complainant’s attorney regarding Respondent’s construction of tenant improvements at Complainant’s restaurant. The complaint provided Complainant’s attorney’s address. The Registrar designated Complainant’s complaint as Case No. 09-5100. On September 24, 2009, the Registrar issued a Citation and Complaint in Case No. 09-5100, charging Respondent with violations of A.R.S. § 32- 1154(A)(2), former (7), (23), and (3), namely A.A.C. R4-9-108. Complainant’s complaint in Case No. 09-5100 proceeded to hearing before Administrative Law Judge (“ALJ”) Eric A. Bryant of the Office of Administrative Hearings (“the OAH”), an independent agency, on February 9, 2010. At the hearing, Complainant, through its attorney, agreed to withdraw its complaint in exchange for Respondent’s agreement to perform work that the Registrar’s Corrective Work Order required. ALJ Bryant therefore recommended that the Registrar close Complainant’s complaint as “resolved/settled/ withdrawn.” On February 26, 2010, the Registrar adopted ALJ Bryant’s recommendation and closed Case No. 09-5100. Subsequently, the parties submitted conflicting information to the Registrar regarding Respondent’s performance of the settlement agreement in Case No. 09-5100. The Registrar redesignated Case No. 09-5100 as Case No. 2009-51000006 and on June 8, 2011, issued an Order Reopening Complaint and Setting Compliance Hearing, in relevant part as follows: On or about June 9, 2010, Complainant submitted a Request to Reopen with the Registrar maintaining, among other things, that “Respondent has not arranged for that or any other work to be performed, and has refused to communicate or to respond to repeated letters and phone messages.”

On June 25, 2010, the Registrar provided Respondent with an opportunity to respond to Complainant’s June 9, 2010 correspondence.

On or about June 29, 2010, Respondent filed its Response providing, among other things, “repairs were completed with the exception of additional services and repairs requested by Complainant.”

On or about July 7, 2010, Complainant filed its Reply further requesting that the matter be set for hearing “to determine whether Respondent breached the settlement agreement.”

Upon review and consideration of Complainant’s Request to Reopen, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that Case No. 2009-51000006 be REOPENED. IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has violated A.R.S. §32-1154(A)(7) by failing to comply with the terms of the parties’ Settlement Agreement. If the assigned administrative law judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately.

A Notice of Compliance Hearing shall be issued in due course.

Note: As of September 30, 2009, the mere breach of a Settlement Agreement no longer constitutes a violation of Arizona Contracting Law. See A.R.S. § 32-1154(A)(7) (removal of “wrongful” from the statute). However, because the Citation and Complaint was issued prior to the removal of wrongful from Subsection (7) and further because Respondent was on notice that “wrongful” conduct constituted a violation of contracting law, all that Complainant is required to prove at the Compliance Hearing is that Respondent wrongfully breached the parties’ Settlement Agreement.

(Emphasis in original.) The Registrar referred the matter back to the OAH for a compliance hearing.

On or about June 9, 2011, Complainant’s attorney submitted a Notice of Withdrawal of Counsel to the Registrar, with a copy to the OAH. Complainant’s attorney informed the Registrar that he had forwarded a copy of the Registrar’s Order Reopening Complaint and Setting Compliance Hearing to Complainant, but requested that the Registrar direct future orders and pleadings to Complainant’s member at the following address and telephone number: / / / / / / / / / / / / Piyu Robinson, Member Jungle 168, L.L.C. 4114 East Juanita Avenue Gilbert, Arizona 85234 (480) 235-0717

On June 16, 2011, the Registrar issued a Notice of Compliance Hearing in Case No. 2009-51000006, setting a compliance hearing on August 10, 2011, at 1:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Compliance Hearing to Complainant at its former attorney’s address of record.[1] A compliance hearing was held in Case No. 2009-51000006 on August 10, 2011. The Registrar’s inspector, Geoff Galgan, testified. Respondent’s qualifying party, John Lee, testified. Inspector Galgan testified that he scheduled a compliance inspection on August 9, 2011. When he went to Complainant’s restaurant, no one was there. Inspector Galgan testified that he tried to call Complainant, but he only had Complainant’s attorney’s telephone number, and the attorney said that he no longer represented Complainant. Mr. Lee testified that Respondent complied with the Corrective Work Order and fully performed the settlement agreement, in addition to correcting 6 or 7 items that were not on the Corrective Work Order. Although the beginning of the compliance hearing was delayed fifteen minutes to allow Complainant additional travel time, it did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to dispute Respondent’s evidence that it fully performed the settlement agreement. / / / / / / / / CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] It is not certain that Complainant received the Registrar’s Notice of Compliance Hearing. Possibly Complainant’s attorney forwarded the Notice of Compliance Hearing to Complainant’s representative.[3] It is also not certain whether Complainant’s restaurant is still in business. If not, even if Respondent did not fully comply with the Registrar’s Corrective Work Order and the parties’ settlement, it may not be possible for Respondent to perform any further corrective action. If Complainant did not receive notice of the compliance hearing, and assuming that Complainant’s restaurant is still in business and Complainant desires to dispute Respondent’s evidence of compliance, it may file a petition for rehearing. Respondent bears the burden of proof and must establish that it complied or was denied reasonable access to comply with the Registrar’s final Decision and Order in former Case No. 09-5100 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’s evidence at the hearing established that it complied with the Registrar’s final Decision and Order in former Case No. 09-5100 by complying with the Corrective Work Order and performing the settlement agreement that the Registrar’s Decision and Order incorporated by reference. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Case No. 2009-51000006 (formerly 09-5100) against Respondent Pacificspan, L.L.C. dba Pacificspan Construction and Development. 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, August 30, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge did not notice at the time of the compliance hearing that the Notice of Compliance Hearing was not sent to the address that Complainant’s former attorney had provided. To save costs, hard copies of such notices are no longer included in the file, and the ALJ did not consult the electronic record until after the hearing. [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(B)(3); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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