ALJDEC decisions subject to certification as final

06F-2540-ROC · Registrar of Contractors · 2006-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2006

APPEARANCES: Complainant appeared through its credit manager, Sharon McCauley 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. Complainant is in the business of supplying electrical related fixtures and supplies. On or about April 2005, Respondent opened an account with Complainant to obtain electrical supplies for use in its contracting business. Evidence of record showed that Respondent had a “stock” account with Complainant, as well as a specific “job” account.

2. Uncontroverted evidence of record established that over numerous months of supplying Respondent with electrical supplies and materials, Respondent’s account with Complainant became seriously in arrears. Further uncontroverted evidence of record established that Respondent’s is delinquent on its payments to Complainant in the amount of $35,934.97.

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

4. Respondent violated the State’s Contracting laws by failing to pay Complainant the sum of $35,934.97 for the electrical supplies obtained from Complainant. In addition, said failure to pay Complainant is also viewed as a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

5. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since October 5, 2006. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to comply with an Order of the Registrar in order to avoid a suspension of an already suspended license.

6. 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 a matter that had gone into the category of resolved, settled or withdrawn . Therefore, Respondent’s prior record is properly deemed to be less than stellar and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

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

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class K- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays or tenders the sum of $35,934.97 to Complainant, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class K-11 license shall be placed on active suspension for a period of 7 days followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that any 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 $3,500.00, 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. 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, December 21, 2006

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 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