FINACT2017A-5527-CHC-ROC.pdf

2017A-5527-CHC-ROC · Registrar of Contractors · 2018-05-31

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Frederick William Merkle, Case No. 2017-5527

COMPLAINANT,

v.

R G B Construction Inc., Docket No. 2017A-5527-CHC-ROC License No. 119983, 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 as Exhibit 1. The Registrar rejects that Decision.

BACKGROUND

On January 17, 2018, the Registrar issued a citation against Respondent for allegedly violating

A.R.S. §§ 32-1154(A)(2), (3), (12), (17), and (22). See Registrar’s Citation, attached as Exhibit 2. On

April 13, 2018, Complainant and Respondent appeared before the Office of Administrative Hearings. On

May 1, 2018, the administrative law judge issued his Decision. The administrative law judge found that Respondent did not violate A.R.S. §§ 32-1154(A)(3) or (22). See ALJ Dec. 11:3-6; 11:7-9. The administrative law judge further found that Respondent did violate A.R.S. §§ 32-1154(A)(1) and (12). See ALJ Dec. 12:10-13. The administrative law judge did not make a conclusion of law regarding Respondent’s alleged violation of A.R.S. § 32-1154(A)(2) or (17).

1 of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762

REJECTION AND WRITTEN JUSTIFICATION The Administrative Law Judge Decision is flawed in two ways and must be rejected. First, the Administrative Law Judge Decision does not address whether Respondent violated A.R.S. §§ 32-1154(A) (2) or (17). Because these charges were substantiated by the Registrar and charged against Respondent in the Citation, the administrative law judge must make sufficient findings of fact and conclusions of law to establish whether Respondent violated those sections. Second, the Administrative Law Judge Decision finds that Respondent violated A.R.S. § 32-

1154(A)(1). The Registrar did not substantiate a charge of A.R.S. § 32-1154(A)(1), nor did the Registrar

include that charge in its Citation to Respondent. Under A.R.S. § 41-1092.03(A)(2) the Registrar must

serve a notice which identifies “with reasonable particularity the nature of any alleged violation,

including, if applicable, the conduct or activity constituting the violation.” See also A.R.S. § 41-

1092.07(F)(6) restricting findings of fact to matters “officially noticed.” Here, neither the Registrar’s

citation, nor the notice of hearing, contained any reference to an alleged violation of A.R.S. § 32-1154(A)

(1). It would be legally and procedurally improper for the Registrar to accept an Administrative Law

Judge Decision that disciplines Respondent for violating a statute it was not cited for, and for an

allegation of which it had no notice of.

CONCLUSION AND ORDER The Registrar hereby rejects the Administrative Law Judge Decision. This matter will be remanded to the Office of Administrative Hearings to make appropriate findings of fact and conclusions of law consistent with this Rejection. A Notice of Hearing will be issued in due course. Dated this 31st day of May 2018. Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund ///

Copy mailed via USPS First Class mail this 31st day of May 2018 to: Respondent R G B Construction Inc PO Box 17132 Fountain Hills, AZ 85269-7132

Complainant Frederick William Merkle PO Box 19258 Fountain Hills, AZ 85269-9258 Copy sent electronically this same date to: Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2017-5527/an

3 of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762