ALJDEC decisions subject to certification as final

06F-G1240-ROC · Registrar of Contractors · 2006-11-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 27, 2006 APPEARANCES: Complainant appeared through its field revenue officer, Andrea Gronek 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 Complaint in this matter was filed with the Registrar of Contractors on or about March 21, 2006, with a request for the instant hearing filed with the Registrar on or about April 5, 2006. Based on basic principles of due process under the law, Complainant was advised at the outset of the scheduled hearing that the instant hearing would be limited to the issues set forth in the filed Complaint, as of March 21, 2006. In the event that Complainant wished to pursue issues with Respondent that involved events subsequent to March 21, 2006, then said issues would have to be the subject matter of a new Registrar of Contractors’ Complaint.

2. Although the original Complaint involved the issue of specified delinquent Transaction Privilege taxes, evidence of record showed that the amount of said delinquent taxes, plus interest, were paid by Respondent, albeit belatedly, on or about August 2006.

3. Regarding the issue of delinquent Transaction Privilege tax returns from February 2004 to December 2004, January 2005 through December 2005, and January 2006 to February 2006, evidence of record showed that although Respondent filed these documents, albeit belatedly, it failed to pay the taxes set forth in said filings.

Uncontroverted evidence of record established that for the period of February 2004 to December 2004, January 2005 through December 2005, and January 2006 to February 2006 Respondent failed to pay the sum of $4,754.19 in taxes, penalties, and interest, as required by applicable law. Respondent’s failure to pay Transaction Privilege taxes constitutes not only a violation of the charged section of the State’s Contracting laws regarding the need for a contractor to pay all required taxes but also a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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

6. 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 failure to renew since June 1, 2006. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar 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.

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. 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

Respondent violated the provisions of A.R.S. § 32-1154A (7) and (5).

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 $4,754.19 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-34 license shall be placed on active suspension for a period of l4 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, November 27, 2006.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 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