ALJDEC decisions subject to certification as final

2011A-579-ROC · Registrar of Contractors · 2011-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by Managing Member and Qualifying Party Steve Forstie.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set for hearing to determine, per the Citation and Complaint issued by the Registrar of Contractors (“ROC”), whether Respondent has violated A.R.S. § 32-1154(A)(3) by way of ROC Rule R4-9-108 for failing to meet minimum workmanship standards, and (A)(12) for failure to comply with “safety or labor laws or codes of the federal government, state or political subdivisions of the state.” The parties appeared as noted above. About one month before the hearing date, Complainant filed a letter with this tribunal in which she stated that she does not have any claims against Respondent regarding workmanship. She stated that her main complaint alleges a violation of “NESHAP.”[1] In response, the Administrative Law Judge issued a Minute Entry on November 4, 2011, stating that in order to prove a violation of subsection (A)(12), Complainant would need to provide a ruling from the applicable federal or state agency that regulates the applicable safety or labor laws.[2] That ruling must conclude that Respondent violated a specific safety or labor law enforced by the applicable agency. The Minute Entry explained that this was necessary because neither the Administrative Law Judge nor the ROC has expertise in safety or labor laws and must rely on the conclusions of the appropriate regulatory agency. At hearing, during opening statements, Complainant confirmed that there were no workmanship issues to address. She stated that her claim was that Respondent violated NESHAP and the proposed evidence in support of it was (1) Federal NESHAP Regulations found at 40 C.F.R. Part 61, Subpart M; (2) Maricopa County Air Pollution Control Regulations Rule 370, Section 301.8 (adopting Subpart M); and (3) a letter from the Maricopa County Air Quality Department (“MCAQD”).[3] The MCAQD letter is signed by the Permitting Division Manager and states that a check of the MCAQD database does not show any “air quality permits or asbestos removal notifications for Durafoam, LLC. . . .”[4] It does not conclude or state that Respondent has violated NESHAP regulations or any other law. Complainant stated that her claim is that Respondent is in violation of NESHAP because Respondent did not obtain a permit for, nor notify MCAQD about, the roofing work done at Complainant’s apartment complex, which, according to Complainant, involved asbestos removal. After listening to Complainant’s opening statement, the Administrative Law Judge ended the hearing without taking testimony, concluding that Complainant has not offered prima facie evidence of a violation of A.R.S. § 32-1154(A)(12) because Complainant has not obtained findings or a ruling on her allegation from the appropriate NESHAP enforcement authority, which appears to be MCAQD. The Administrative Law Judge’s conclusion is based on principles underlying the legal doctrine of primary jurisdiction. The doctrine of primary jurisdiction is a discretionary doctrine used by courts when a court and an administrative agency have concurrent jurisdiction over an issue.[5] Quoting Professor Kenneth Culp Davis, the Arizona Court of Appeals has explained that [t]he principal reason behind the doctrine is recognition of the need for orderly and sensible coordination of the work of agencies and of courts. Whether the agency happens to be expert or not, a court should not act upon subject matter that is peculiarly within the agency's specialized field without taking into account what the agency has to offer, for otherwise parties who are subject to the agency's continuous regulation may become the victims of uncoordinated and conflicting requirements.[6]

The Arizona Court of Appeals has also recognized the principal underlying the doctrine, quoting the United States Supreme Court: [I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.[7]

Thus, the principle upon which the judicial doctrine of primary jurisdiction rests is that order and efficiency are served when a regulatory agency that has expertise in the area at issue and that has been created to address implementation and enforcement of the laws governing the area at issue hears the initial presentation of evidence and makes a decision before the courts do. That principle applies here as between the ROC and MCAQD. This tribunal does not believe that the Arizona Legislature intended that the ROC hold hearings on environmental law questions before the agencies enacted to enforce those laws have had the opportunity to address the questions.[8] Rather, those issues should be taken to the agency with primary enforcement authority. Indeed, the ROC has long deferred to local building authorities concerning questions of compliance with local building codes. The ROC has secondary jurisdiction with regard to those matters. Therefore, this tribunal concludes that the ROC has secondary jurisdiction over violations of safety and labor laws under A.R.S. § 32- 1154(A)(12). A complainant must first seek a ruling by the primary enforcement agency of the specific safety or labor law that is alleged to have been violated before seeking enforcement at the ROC. Because Complainant did not do that here, she has not made a prima facie case for her complaint. Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-579 be dismissed.

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, December 20, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] National Emissions Standards for Hazardous Air Pollutants. [2] The statement is based on the principles of primary jurisdiction as described below. [3] These three documents are found in Complainant’s Exhibit notebook in the section marked “Count 1.” [4] It should be noted that Respondent’s name is not Durafoam LLC, but Durafoam Roofing, LLC. [5] Coconino Cnty. v. Antco, Inc., 214 Ariz. 82, 87, 148 P.3d 1155, 1160 (App. 2006). [6] Campbell v. Mountain States Tel. & Tel. Co., 120 Ariz. 426, 430, 586 P.2d 987, 991 (App. 1978) (quoting 3 K. Davis, Administrative Law Treatise § 19.01 at 3-5). [7] Far East Conference v. United States, 342 U.S. 570, 574-5, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952) (quoted by Campbell, 120 Ariz. at 430, 586 P. 2d at 991). [8] The same principle would apply to questions of compliance with social security laws, workers’ compensation laws, and unemployment insurance laws under A.R.S. § 32-1154(A)(4), as well as failure to pay income taxes, withholding taxes, or other taxes under subsection (A)(5).

-----------------------

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