ALJDEC

01F-1259-ROC · Registrar of Contractors · 2001-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2001 APPEARANCES: Complainant appeared through its vice-president of operations, Phillip Tyler and Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Respondent, as general contractor on a new condominium construction project, retained Complainant under a subcontract to install exterior stone veneer on the homes and specified concrete pavers.

2. Uncontroverted evidence of record established that the applicable contract called for payment to Complainant in the total amount of $52,000.00 for completion of the above-described construction work. The parties entered into the contract on or about April 20, 2000 and by May 2000 Complainant had completed all of the contracted work.

3. Notwithstanding numerous attempts to seek payment under the contract, Respondent failed to pay Complainant any portion of the $52,000.00 contract. It should be noted that Complainant never received any complaints from Respondent regarding the quality of its workmanship on the project.

4. Based on Respondent’s failure to pay Complainant for the work performed under the contract, Complainant filed the instant complaint with the Registrar of Contractors. Despite receiving notice of the filed complaint and ultimately the Citation issued against its license, Respondent still has not paid anything under the applicable contract.

5. By its failure to appear at the instant hearing, Respondent failed to present any matters in defense or mitigation.

6. The undisputed evidence of record established that Respondent violated the applicable provisions of the State’s Contracting laws regarding the requirement of paying subcontractors for work performed and, as such, Respondent’s failure to pay Complainant is also found to constitute a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record, regarding Respondent, which had even gone into the hearing process. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Undisputed evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154A (11) and (7).

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $52,000.00 to Complainant. It is further recommended that if Respondent pays or tenders the above-described sum of money to Complainant on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on active suspension for a period of ten (10) days, followed immediately by a period of 180 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $2,500.00, such bond or deposit to be in addition to the required surety bond or cash deposit set forth in A.R.S. § 32-1152 (D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending. Done this day, May 25, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

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