ALJDEC

98F-2755-ROC · Registrar of Contractors · 1998-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 30, 1998 APPEARANCES: Thomas General Builder, Inc., appeared through its attorney, Jay R. Graif, Esq.; Michael Howard Gregg, dba Lightning Bolt Plumbing, appeared on his own behalf; Donald Joseph Kiley, Jr., dba Dodge Plumbing Co., appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

A hearing was held in this matter on November 30, 1998. After Thomas General Contracting, Inc. (“TGB”) presented most of its case in chief in this consolidated proceeding, the parties agreed to a settlement, whose terms will be set forth below.

FINDINGS OF FACT

The Registrar of Contractors has issued License No. 095643, Class B to TGB; License No. 113744, Class C-37R to Michael Howard Gregg, dba Lightning Bolt Plumbing; and License No. 121064, Class C-37R to Donald Joseph Kiley, Jr., dba Dodge Plumbing Co. The three complaints that the contractors allege against each other’s licenses arises out of Mr. Gregg’s performance, with or without Mr. Kiley’s help, of a subcontract with TGB for work on the Bethany Court Project and TGB’s subsequent withholding of monies for damage that Mr. Gregg had done to the project. The evidence presented on the cause of the alleged damage, the amount of the alleged damage, Mr. Kiley’s involvement in the project and other matters was conflicting. In light the uncertainties in the evidence, the parties, without admitting to any wrongdoing or misconduct, agreed to give up possibly valid claims against each other’s licenses, to dismiss with prejudice these three claims, without any exchange of money, and to give up any claims for civil damages arising from these operative facts that could have been asserted in a court of competent jurisdiction. Mr. Gregg also agreed that he would help TGB finish the trim work on lots 1, 6, and 8 at the Bethany Court project, which should take no longer than a day or two.

CONCLUSIONS OF LAW

In this administrative proceeding, the complainant in each of the three complaints bore the burden of proof to establish a statutory violation by a preponderance of the evidence. See Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). To the extent that the parties may have been seeking money damages from each other, “[t]he Registrar’s power is limited to suspending or revoking a contractor’s license, or attaching conditions to the license. Money damages may not be awarded.” J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (App. 1984) (quoted in Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 440, 803 P.2d 430, 433 (App. 1990)). The Registrar of Contractors and the Office of Administrative Hearings favor settlements and encourage contractors to settle disputes among themselves. The parties’ settlement effectively cut short the administrative disciplinary proceedings hereunder, which is presented to the Registrar for approval and adoption. The parties are advised that any future breach of the settlement agreement will not only constitute grounds for the filing of a new complaint but also shall warrant treatment as a circumstance in aggravation. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement and, if any timely petition for rehearing of this matter is to be filed and granted, or if any new complaint is filed in the future, the sole issue for determination shall be whether the parties have performed their obligations under the settlement agreement. In light of the uncertainties in the outcome, the limitations on remedies available in this forum, and the cost of further prosecution of civil claims, the parties’ settlement appears to have been voluntarily made and fair and reasonable, even though no one obtained the relief sought.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citations and Complaints in Case Nos. 98-2680, 98-2754, and 98-2755 be closed.

Done this day, December 3, 1998.

_________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of December, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007 ATTN: Joyce Armijo

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826