ALJDEC decisions subject to certification as final

05F-2625-ROC-com2 · Registrar of Contractors · 2008-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2008 APPEARANCES: Complainants appeared on their own behalf 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. The instant matter came on for hearing pursuant to a decision of the Registrar of Contractors to hold a compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. In this regard, the Registrar issued a Notice of Compliance Hearing on July 1, 2008, which provided that the instant compliance hearing shall be conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on June 20, 2006 and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.”

2. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing.

3. The original hearing in this matter resulted in a settlement agreement reached between the parties. The terms of the settlement were read onto the record during the original hearing and the essential terms were also incorporated into the Order issued by the Registrar on June 20, 2006. Paragraph no. 2 of the Findings of Fact in the Order of June 20, 2006 provided, in pertinent part, for the following:

Respondent will pay to Complainants the total sum of $25,000.00, to be paid in three installments as follows:

1. Respondent will pay to Complainants the sum of $20,000.00 via a cashiers check by Tuesday, October 30, 2007; 2. Respondent will pay to Complainants the sum of $3,000.00 via a cashiers check within six months of October 24, 2007; and 3. Respondent will pay to Complainants the sum of $2,000.00 via a cashiers check within nine months of October 24, 2007.

4. Uncontroverted evidence of record established that Respondent has not paid anything on the above-described settlement agreement.

5. By its failure to appear for the scheduled hearing, Respondent failed to present any evidence or testimony regarding the non-payment on the settlement agreement.

6. Undisputed evidence of record established that Respondent failed to comply with the original Decision and Order entered in this matter.

7. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been canceled since May 25, 2005. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing disciplinary orders. Moreover, Respondent’s existing cancelled license status must be considered when determining appropriate penalties in this case.

8. As aforementioned, the Notice of Compliance Hearing, issued by the Registrar of Contractors, indicated that disciplinary penalties may be issued against Respondent as a direct result of the instant Compliance hearing. The facts presented herein, warrant the imposition of a disciplinary sanction against Respondent’s license for entering into a settlement agreement, which terminated prior license disciplinary proceedings, and then not complying with said settlement agreement. These facts are properly viewed as a matter in extreme aggravation.

CONCLUSIONS OF LAW

1. Respondent has failed to comply with the terms and conditions of the previous Order of the Registrar of Contractors in this matter.

2. Respondent’s failure to comply with the terms and conditions of the aforementioned Order warrants the imposition of a serious disciplinary sanction against Respondent’s license.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class KB-02 license shall be revoked on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, August 12, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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