VACATE

99F-T0242-ROC · Registrar of Contractors · 1999-12-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

These consolidated matters were originally scheduled for administrative hearing on December 21st, 1998. Rincon moved for a continuance at that time because the same case and controversy involved in these administrative matters was the subject of pending litigation in the Pima Superior Court. Based on the parties’ representation it was understood that the superior court trial would be held sometime in February of 1999, so the administrative hearings were continued until a time when it was expected the superior court litigation would have been decided. Reasoning that the superior court outcome might obviate the need for administrative hearing and resolution, the hearings were continued until July of 1999. Based on a delay of the superior court trial brought about by Mr. Konarski of FGPJ Apartments, the superior court trial had to be continued. Thus the administrative hearing scheduled for July, 1998, had to be vacated. The superior court litigation eventually ended without a trial, on pre-trial motions and order of the court. The superior court struck Mr. Konarski’s answer in the case because Mr. Konarski had replaced the roofs which were the evidence in the case. The court ruled that his actions in willfully destroying evidence were highly prejudicial to Rincon in that they destroyed material evidence and precluded Rincon from the opportunity of inspecting the roofs to prove its case. Because of Mr. Konarski’s (FGPJ) actions the court could not possibly have a trial on the merits of the complaint about the roofs. The superior court went on to grant judgment in favor of Rincon Roofing. (The Pima Superior Court Case No. is 324998.) Mr. Konarski’s complaint before the Registrar on its face seeks to require Rincon Roofing to correct the roofs it installed. However, now, because of Mr. Konarski’s actions, the roofs in question no longer exist, and have already been replaced. (Please note, the Registrar of Contractors’ Inspector is on record as having inspected the roofs in question and found no corrective action to them was required.) Rincon Roofing’s complaint before the Registrar seeks payment from Mr. Konarski (FGPJ). However, Rincon has succeeded in obtaining a superior court judgment for just that relief, plus costs and attorney’s fees. In light of the foregoing, the Administrative Law Judge issued an order to the parties to show cause why these consolidated cases ought not be vacated from the calendar of the Office of Administrative Hearings and returned to the Registrar of Contractors for further action. Both parties responded, and the ALJ has considered those responses. It is the considered opinion of this ALJ that no further purpose can be served by OAH or The Registrar in these administrative matters and they ought to be dismissed. Mr. Konarski ought not be allowed to gain by his willful destruction of evidence at the prejudice of Rincon Roofing. Moreover, what he sought (correction of the roofs installed by Rincon) cannot possibly be accomplished now anyway since he replaced the roofs. The only relief Rincon sought it has already obtained in superior court. Once Mr. Konarski destroyed the roofs this controversy boiled down to a money dispute for damages. As such, these consolidated cases bear a striking resemblance to the Registrar’s Decision and Order in A American Electrical Services v. Frank John Konarski d.b.a. F G P J Development, T99-0426, in which the Registrar dismissed the complaint so that it could be more properly resolved in superior court. (Decision and Order dated April 22nd, 1999). A.A.C. R2-19-111.4. provides for the OAH to vacate a hearing and return the matter to the Registrar if “[f]acts demonstrate to the administrative law judge that it is appropriate to vacate the hearing . . . . if the action will further administrative economy and does not conflict with law or cause undue prejudice to any party.” Vacating these hearings and returning the matters to the Registrar will certainly serve to promote administrative economy. There is no conflict with law. Neither party will be unduly prejudiced as Mr. Konarski (FGPJ) can no longer obtain what he asked for in the complaint, and Rincon already has obtained what it asked for in its complaint. Continuing with the hearing and allowing the administrative process to grind on in the face of recent developments would serve no useful purpose, but would only cause more expense to both parties, and unduly prejudice Rincon and unjustly reward FGPJ for its willful destruction of evidence. Wherefore, it is hereby ordered that consolidated cases 99F-T0137-ROC and 99F-T0242-ROC, are vacated from the calendar of the OAH and these matters returned to the Registrar of Contractors for further action, with the recommendation that they be dismissed. Done this day, December 23rd, 1999.

_________________________________ Grant Winston Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 1999, to:

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

Sean E. Brearcliffe Cynthia T. Kuhn Rusing & Lopez, P.L.L.C. 6262 N. Swan Road, Suite 200 Tucson, AZ 85718 Attorneys for Rincon Roofing

Keith M. Knowlton Keith M. Knowlton, L.L.C. 4409 S. Rural Road, Suite 201 Tempe, AZ 85282-7072 Attorney for Frank Konarski and FGPJ

By _______________________________

----------------------- Office of Administrative Hearings 100 North Stone, Suite 704 Tucson, Arizona 85701 (520) 628-5488