ALJDEC

99F-2409-ROC-com · Registrar of Contractors · 2000-12-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On December 11, 2000, the above-entitled matters came on for a continued consolidated compliance hearing ordered by the Registrar of Contractors. The Complainants were represented by their attorney, Everett S. Butler, Esq. Respondents, Coffman Constructrion Co., Inc. and Lidbloom Painting were represented by their attorney, Frederick E. Davidson, Esq. and Respondent, Showcase Pools, appeared

through its President and Qualifying Party, Donald Walker. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. At the outset of the scheduled consolidated compliance hearing, extensive oral arguments were presented in support of and in opposition to the respective parties’ positions with respect to the belated filing of a purported amended complaint, the impact of the Registrar’s Notice of Hearing, the existence of any concluded settlement agreement, and the posture and scope of the instant administrative actions. [1]

2. At or near to the conclusion of the above-referenced oral arguments, Complainants moved to withdraw all three of their complaints against the respective Respondents, as filed with the Registrar, effectively consenting to the entry of an Order or Orders by the Registrar closing all such complaints with prejudice to either reviving the presently pending complaints or filing new administrative complaints based upon the same underlying allegations. None of the named Respondents objected to the Complainants’ aforesaid motion.

3. It was understood that the respective administrative complaint withdrawals by Complainant and any closing Orders are expressly to be without prejudice to the subsequent assertion or utilization by Complainants of claims, counterclaims, set-offs or defenses consisting of, based upon or involving the same underlying allegations in any existing or future judicial civil proceedings between the within named parties.

4. The above-described unopposed withdrawal requests rendered further rulings or determinations by this tribunal unnecessary, including the need for any findings or conclusions with respect to the issue specified in the Notice of Hearing as to whether or not Respondent had substantially complied with any purported settlement, which was the specific purpose that prompted the convening of the instant hearing.

CONCLUSIONS OF LAW

1. No valid reason is perceived to exist for not approving and accepting the Complainants’ request to withdraw the three complaints filed herein. The entry of an Order by the Registrar of Contractors is fully warranted so as to close all of these cases with prejudice to any future re- opening or re-filing of same or to the future filing of any new, separate administrative complaint involving the same underlying allegations, charges or issues.

2. Any full re-opening of original administrative disciplinary cases after previously entered closing or dismissal Orders have become final and non-appealable is inappropriate and perhaps legally impermissible. It is, however, proper to accept and process new, separate timely filed complaints either on the merits or on the issue of an allegedly breached prior settlement agreement. This conclusion has no effect upon or applicability to the within cases that have been effectively terminated administratively.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citations and Complaints in Cases Numbered 99-2409, 99-2411 and 99-2413, both individually and collectively, be closed with prejudice as to the future filing or re-filing by Complainants of any administrative complaint or complaints involving the same underlying allegations, charges or issues, but without prejudice as to the subsequent assertion or utilization by Complainants of claims, counterclaims, set-offs or defenses consisting of, based upon or involving the same underlying allegations, in any existing or future civil proceedings between the within named parties. . Dated: December 14, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

Attn: Joyce Armijo ----------------------- [1] The Registrar’s processing of these consolidated cases provides a striking example of potentially generating avoidable substantive and procedural legal problems. Despite explicit language in the previously approved and adopted recommended Closing Order requiring the subsequent filing either of a timely petition for rehearing or of a new, separate complaint, the Registrar elected to “re-open” the original complaint after the appeal time had elapsed. The Order and Notice of Hearing did specifically limit the issues to a determination of compliance with a reported settlement agreement which had served as the inducement for entering the Closing Order, notwithstanding the fact that the contents of Complainants’ filed request for re-opening had specifically alleged a failure to conclude any settlement agreement (Respondent, however, contended that a valid verbal settlement had been reached and also persuasively questioned the propriety of any full re-opening of the original case, closed by a final Order that had become non-appealable, especially since a possible defense based upon the Statute of Limitations may perhaps have been successfully asserted against any newly filed complaint).

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