ALJDEC

01F-2769-ROC · Registrar of Contractors · 2001-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2001 APPEARANCES: Complainant appeared through its president and qualifying party, Dennis Rusk. Respondent appeared through its president, Barry Flemming. 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. Pursuant to contract, Respondent retained Complainant to install a custom shower door in a bathroom remodel project. Complainant contends that Respondent has failed to pay for the work and materials provided and this issue is discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant and Respondent had worked together, as general and subcontractor for a considerable period of time. The normal contract procedure between the parties required Complainant to perform the glass work and then, at the conclusion of the project, to bill Respondent for the cost of said project, allowing thirty (30) days for payment. b. Evidence of record demonstrated that on or about March 29, 2001, Complainant completed the shower door installation at issue herein and, in accordance with its normal business practice, billed Respondent for the sum or $1485.42. c. Uncontroverted evidence of record established that Respondent has failed to pay any portion of the aforementioned billing. Although the filed complaint makes reference to another billing, Complainant averred at the instant hearing that the only issue it was pursuing was the issue of the $1485.42 billing. d. Respondent’s president testified that he was not working in the business at the time of the shower glass installation project due to a recent surgical procedure. His surgery caused him to be off work for a considerable period of time and he testified that when he returned to the business same was in poor financial condition. e. Ultimately, Respondent’s president was forced to file personal bankruptcy, due primarily to his medical bills from his recent hospitalization without health insurance. f. On or about June 30, 2001 Respondent closed its business due to financial problems. g. Notwithstanding Respondent’s financial problems, there was no showing that Respondent did not receive sufficient funds from the remodel project in question to have paid Complainant for the shower door installation. Moreover, there was no adequate showing that the shower door installation was substandard or that Complainant refused to perform any required remedial work on said project. In fact, the Registrar of Contractors’ file in this matter contains a letter from Respondent, dated August 20, 2001, which states, among other things, that “ABC Glass did perform the services billed and is due that money…I certainly regret not being able to pay this subcontractor because he produces an excellent product.”

3. The evidence of record established that Respondent failed to pay Complainant a sum greater than $750.00, which was due to Complainant for materials and services rendered in connection with Respondent’s operations as a contractor and, as aforementioned, there was no showing that Respondent did not receive sufficient funds from the remodel project for which Complainant’s services were rendered. This conduct is therefore, found to constitute a violation of the applicable charged sections of the State’s Contracting laws.

4. 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 Respondent’s prior record and said notice revealed another complaint that had gone into the hearing process, which resulted in the finding of a contracting law violation. Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

5. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been canceled since July 13, 2001. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing disciplinary orders against Respondent’s license. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (11).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter.

Done this day, November 29, 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 __________________________