ALJDEC decisions subject to certification as final

2012A-129-ROC · Registrar of Contractors · 2012-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, William Leslie Channell. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented, and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of License No. B-1.151737-C issued by the Registrar of Contractors. 2. San Pedro Builders Inc. (“San Pedro”) filed a formal complaint against Respondent with the Registrar of Contractors alleging that Respondent had failed to pay San Pedro the sum of $154,000.00 for concrete and rebar work performed by San Pedro for Respondent.[1] 3. On February 15, 2012, the Registrar of Contractors issued a Citation and Complaint in this matter advising and notifying Respondent that it was charged with violating the State’s contracting laws, specifically, A.R.S. § 32-1154(A)(11).[2] 4. On June 6, 2012, Respondent filed a request that the matter be dismissed on the basis that the parties had settled the matter and San Pedro had been paid in full. Respondent attached a signed Settlement and Mutual Release Agreement. 5. San Pedro objected thereto on the basis that San Pedro had not received any money. On June 8, 2012, this tribunal issued an Order denying Respondent’s request. 6. San Pedro’s representative, William Leslie Channell, testified at the hearing. Mr. Channell acknowledged that the parties had entered into a written Settlement and Mutual Release Agreement in the parties’ concurrent civil case[3] and that his attorney had received the agreed upon settlement money.[4] 7. Mr. Channell stated that he wanted Respondent’s license disciplined on the basis that San Pedro had been required to pay attorney’s fees in the parties’ concurrent civil case and asserted that Respondent had been unscrupulous in its business dealings with San Pedro. 8. The parties’ Settlement and Mutual Release Agreement provides, in pertinent part, as follows: 1. Hudson[5] shall pay San Pedro the total amount of $105,000.00 (the “Payment”) as full and final settlement of all claims against the Bond and all claims brought in the Lawsuit. 2. Contemporaneously with the execution of their Settlement and Mutual Release Agreement, San Pedro shall execute a Conditional Waiver and release on Final Payment (“Conditional Waiver”), a copy of which is attached hereto as Exhibit “A.” 3. Within 10 business days of actual receipt of the executed Conditional Waiver, Hudson shall issue a check (the “Settlement Check”) in the amount of the Payment to San Pedro. 4. Immediately upon actual receipt of the Settlement Check, San Pedro shall execute an Unconditional Waiver and Release on Final payment (“Unconditional Waiver”), a copy of which is attached hereto as Exhibit “B,” and shall provide a copy of the executed Unconditional Waiver to Hudson and Simmons.[6] 5. Within 5 business days of the receipt Settlement Check, the Parties shall execute a Stipulation to Dismiss the Lawsuit with Prejudice, a copy of which is attached hereto as Exhibit “C”, and cause it be filed immediately after it is executed by all parties to the Lawsuit….[7]

9. The provisions of the parties Settlement and Mutual Release Agreement establish that the parties have fully resolved their financial dispute in this matter and that San Pedro has been paid the agreed upon sum of money set forth in the parties’ Settlement Agreement. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Registrar of Contractors is not empowered to award attorney’s fees. See Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 611-612, 838 P.2d 1369, 1372-73 (App. 1992) (Prevailing party in administrative claim before Registrar of Contractors was not entitled to attorney’s fees from its opponent under A.R.S. § 12-341.01(A) because administrative hearing is not an “action”). 4. A general policy of law favors the settlement of disputes and adverse parties should be free to adjust their differences by entry into agreements and stipulations of settlement which should be recognized and given effect by the tribunal having jurisdiction over the issues and statutory enforcement authority. 5. Credible testimony and evidence supported findings which establish that the parties have reached a settlement of their dispute in this matter and that San Pedro has been fully paid in accordance with the terms of the parties’ Settlement and Mutual Release Agreement. This tribunal concludes that Respondent is not in violation of the charged provisions of A.R.S. § 32-1154 (A) (11).[8] RECOMMENDed order In view of the foregoing, it is recommended that this matter be closed as settled. In the event of certification of this 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 the certification. Done this day, July 2, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Complaint Form received by Registrar of Contractors on January 6, 2012. [2] February 15, 2012, Citation and Complaint. [3] Superior Court for Cochise County, Case No. CV2011-00926. [4] 6/11/12 Hearing Record (hereinafter “H.R.”) at 21:08-24:43. [5] Hudson Insurance Company. [6] Simmons Construction LLC. [7] Exhibit C-1 (Settlement and Mutual Release Agreement). [8] A.R.S. § 32-1154(A) (11) (Failure by a licensee or agent or official of a licensee 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 when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased).

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

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