ALJDEC decisions subject to certification as final

07F-2142-ROC · Registrar of Contractors · 2007-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2007 APPEARANCES: Complainant appeared through its accounts receivable clerk, Susie Martinez (“Martinez”) 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 filed the instant Complaint with the Registrar of Contractors, due its claim that Respondent failed to pay for materials provided. The issues surrounding this claim are discussed in the findings below.

2. Evidence of record showed that on or about January 2007, Complainant provided Respondent with tile materials. Respondent paid for the materials with a check, which was not honored by Respondent’s bank, due to insufficient funds. Complainant has been attempting to collect on this debt ever since.

3. Martinez testified that Complainant has received $5,000.00 from Respondent’s bond and, as of the date of the instant hearing, the remaining balance due and owing to Complainant is $5,935.27.

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

5. Uncontroverted evidence of record established Respondent’s failure to pay Complainant for materials and this conduct constitutes a violation of the applicable charged section of the State’s Contracting laws, regarding the need to pay for materials or services rendered in the course of a contractor’s construction business. In addition, this failure to pay is also deemed to be a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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 lack of a proper bond since June 24, 2007. 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.

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 the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. However, the record does show a total of three (3) open Complaints. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or aggravation 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 (11).

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. It is further recommended that if Respondent pays or tenders to Complainant the sum of $5,935.27, 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 KB-02 license shall be placed on active suspension for a period of 10 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 $5,000.00, 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 24, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, 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