ROC Vacate with Final Order

2013A-5148-ROC · Registrar of Contractors · 2014-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

FINDINGS OF FACT 1. A hearing on the merits had been scheduled on this date on the Complaint filed by the Registrar of Contractors (“the Registrar”) against License No. B.058448-R of Gary Don Berryhill dba G D Berryhill Enterprises Custom Home Division (“Mr. Berryhill” or “Respondent”). 2. At the hearing, after a private discussion between the Registrar’s attorney and Mr. Berryhill off the record, the parties agreed to resolve the Complaint and stated the terms on the record. 3. Mr. Berryhill agreed to admit the violations of A.R.S. § 32- 1154(A)(3),[1] namely A.A.C. R4-9-108,[2] A.R.S. § 32- 1154(A)(13),[3] namely A.R.S. § 32-1158(B),[4] and A.R.S. § 32- 1154(A)(23)[5] that were charged in the Registrar’s Citation and Notice of Hearing. 4. Mr. Berryhill also agreed that based on the admitted violations, the Registrar would revoke License No. B.058448-R. 5. Mr. Berryhill also agreed to pay the sum of $100.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). CONCLUSIONS OF LAW The cancelled status of Respondent’s license does not deprive the Registrar of its right to prosecute the complaint against Respondent or prevent the Office of Administrative Hearings from making a recommendation to resolve the Complaint.[6] Public policy favors settlement of disputes and adverse parties should be free to resolve their differences voluntarily. All rights and defenses of the parties are merged into the settlement agreement. The terms of the settlement are fair and reasonable, under all the circumstances. Mr. Berryhill voluntarily entered the settlement, knowing its consequences. RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the final Order, License No. B.058448-R of Gary Don Berryhill dba G D Berryhill Enterprises Custom Home Division shall be revoked. It is further recommended that Mr. Berryhill shall pay the sum of $100.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Mr. Berryhill fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final Order, License No. B.058448-R of Gary Don Berryhill dba G D Berryhill Enterprises Custom Home Division shall be revoked, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, March 3, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Copy mailed/e-mailed/faxed March 3, 2014 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 1700 W. Washington Street, Suite 105 Phoenix, AZ 85007

By IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to Paragraph 5.0 of Interagency Service Agreement ROC-001, entered into by the Registrar of Contractors (Registrar) and the Office of Administrative Hearings (OAH)[7],

Case No. 2013-5148, OAH 2013A-5148-ROC, having been vacated short of a hearing on the merits as the result of (1) an executed settlement agreement, (2) a joint stipulation to withdraw, or (3) a joint notice of resolution,

IT IS ORDERED that Case No. 2013-5147, OAH 2013A-5148-ROC, be closed as resolved/settled/withdrawn, with such closing constituting the further action of the Registrar for the purposes of A.A.C. R2-19-111(1)[8], and so reflected by the Registrar on its website as its administrative action.

Done this day: March 3, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Copy mailed/e-mailed/faxed March 3, 2014 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 1700 W. Washington Street, Suite 105 Phoenix, AZ 85007

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [2] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [4] A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . [5] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [6] See A.R.S. § 32-1154(C). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [7] http://www.azoah.com/ROC001.pdf

[8] R2-19-111. Vacating a Hearing An administrative law judge shall vacate a calendared hearing and return the matter to the agency for further action, if : 1. The parties agree to vacate the hearing.

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

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