FINACT2015A-1147-ROC.pdf

2015A-1147-ROC · Registrar of Contractors · 2016-10-24

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA Barbra Ann Schwartz, Case No. 2015-1147 COMPLAINANT, v. Docket No. 2015-1147-ROC K Hovnanian Building Company, LLC, License No. 277023, FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision attached. JUSTIFICATION AND MODIFICATION The Registrar’s citation of a contractor raises this central administrative issue: should the licensee’s license be suspended or revoked? See A.R.S. § 32-1155(A). Generally, it is unreasonable for the Registrar to discipline a licensee’s license in a case in which the complainant, or the complainant’s agent, uses execrable language to express murderous intent regarding the contractor’s trade partner or subcontractor. Such threats effect a constructive denial of access. Here, the Administrative Law Judge Decision states that Complainant’s husband had authority to act on Complainant’s behalf in dealings with Respondent and Respondent’s trade partners. ALJ Dec. 1:16–20. In dealing with a trade partner’s employee about a dishwasher, Complainant’s husband stated: “If it is not here by noon, I am going to go down there and cut her fucking head off with a pocket knife. This fucking cunt.” ALJ Dec. 2:24–26. That statement was recorded. ALJ Dec. 2:20–22. It would be inappropriate for the Registrar to administratively discipline Respondent’s license in this case. If Complainant has in fact been damaged by Respondent, Complainant may seek compensation in a civil court of law. But given the undeniable existence of threatening statements, disciplining Respondent’s license would be unreasonable. The Registrar should not discipline a respondent’s license in any case in which a complainant or complainant’s agent have stated an intent to “cut [someone’s] fucking head off.”

1 of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 The Registrar therefore accepts the Administrative Law Judge’s recommendation to dismiss the administrative case. The Registrar modifies the Administrative Law Judge Decision only to this extent: the Registrar replaces the Discussion section (ALJ Dec. 6:1–19) with the reasoning contained in this Final

Administrative Decision and Order. CONCLUSION AND ORDER The case is dismissed effective immediately. Dated this 21st day of October 2016. Registrar of Contractors /s/ James N. Hanson ----------------------------------------------------------- James N. Hanson Assistant Director, Legal Department

Copy mailed via USPS First Class mail this 21st day of October 2016 to: Respondent K Hovnanian Building Company, LLC 20830 N. Tatum Blvd Ste. 250 Phoenix, AZ 85050-7263 Dennis I. Wilenchik, Esq. Wilenchik & Bartness PC 2810 N. 3rd St. Phoenix, AZ 85004-1011

Complainant Barbra Ann Schwartz 6635 W. Happy Valley Rd. #A104-127 Glendale, AZ 85310-2609

And copy electronically mailed this same date to:

Office of Administrative Hearings Tammy Eigenheer, Administrative Law Judge Case No. 2015-1147/ck