PDF copy: ORDER

2023A-07792-NPC-ROC · Registrar of Contractors · 2023-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Associated Finishes Inc, No. 2023A-07792-NPC-ROC

COMPLAINANT ORDER v.

RST Contracting LLC License No. ROC 276531,

RESPONDENT

Respondent’s Motion to Quash is denied, the new deadline for production regarding Complainant’s subpoena is November 1, 2023, to allow Respondent sufficient time to produce documents and to allow sufficient time for Complainant to review said documents. Final production of all other document and witness disclosures will be November 24, 2023. On September 11, 2023, Complainant requested a motion to continue the hearing scheduled for October 24, 2023. On September 12, 2023, Complainant submitted a subpoena request which was signed and returned on the same date. The Complainant’s motion to continue was granted and the October 24, 2023, hearing was scheduled for December 1, 2023. On September 18, 2023, Respondent filed a Motion to Quash. Respondent argued Arizona Law does not allow for the issuance of a subpoena for records upon a party, and assuming arguendo the law does allow for such issuance, the subpoena sets an unreasonable return time and is overly broad; therefore, the subpoena ought to be quashed. Complainant replied to Respondent’s Motion to Quash and argued subpoenas are allowable under both the Arizona Rules of Civil Procedure and Arizona Administrative Code. Complainant argued their subpoena is not overly broad because the documents they seek are relevant to a fact of consequence, namely total amount due on the alleged unpaid contract.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 The Arizona Rules of Civil Procedure do not apply to any matter heard by the Office of Administrative Hearings when a procedure is provided by statute.1 The Office of Administrative Hearings is authorized to issue subpoenas pursuant to A.R.S. § 41- 1092.07(C) which states in pertinent part, “[t]he administrative law judge may issue subpoenas to compel . . . the production of documents.” There is no party exception in the statutes which authorize the issuance of a subpoena by an administrative law judge. Thus, this Court may issue a subpoena for party documents. An administrative law judge shall quash or modify a subpoena if it is unreasonable, oppressive, or the desired evidence may be obtained by alternative method.2 Here, the documentation sought by Complainant is not unreasonable nor is it oppressive to produce such documents. It is reasonable to request relevant documentation which can prove or disprove a fact of consequence to the proceeding. The documentation requested by Complainant is relevant to a fact of consequence, namely the total compensation amount allegedly owed. As to the argument the subpoena is oppressive, Respondent has already indicated in their Motion to Quash they intended to produce documents in their final disclosure they cannot now argue it is too burdensome to produce when they already intended to so. Finally, the documents Complainant seeks are private, non-public, and are exclusively under the control of Respondent; therefore, there is no alternative method to receive said documents. For the above reasons, Respondent’s Motion to Quash is denied.

Done this day, October 12, 2023.

/s/ Brian Del Vecchio Administrative Law Judge Transmitted by either mail, e-mail, or facsimile to: A.A.C. §R2-19-102 states in pertinent part, if a procedure is not provided by statutes or these rules, and administrative law judge may issue an order using Arizona Rules of Civil Procedure and related local rules for guidance. 2 A.A.C. §R2-19-113(E) states, The administrative law judge shall quash or modify the subpoena if: 1. It is unreasonable or oppressive, or 2. The desired testimony or evidence may be obtained by an alternative method. Tom Cole Director Registrar of Contractors c/o Legal Department 1700 W. Washington Street, Suite 105 Phoenix, AZ 85007 [email redacted] James Sparks SPARKS LAW GROUP PLLC [email redacted] [email redacted]

Scott F. Frerichs Jennings Strouss & Salmon, PLC [email redacted] By: OAH Staff