ALJDEC decisions subject to certification as final

07F-2621-ROC · Registrar of Contractors · 2008-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 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. Pursuant to written contract, Rosalita Lobue (“Rosalita”) and Respondent entered into a contract for an addition to be constructed onto Complainants’ residence. Complainants allege that they have been damaged by Respondent’s actions or lack thereof on this project. The facts surrounding this claim are discussed in the findings below.

2. The following uncontroverted facts were established at the hearing:

a. Rosalita testified that the original contract price for the project was approximately $16,000.00, in order for Respondent to complete the addition to the family room. According to Rosalita, the applicable contract was executed by the parties in February 2007. b. Complainants presented Respondent with several payments, as requested. On February 25, 2007, Complainants gave Respondent a check for $3,500.00, as a down-payment on the contract. Subsequent to this payment, Complainants made four additional payments of $2,500.00 to Respondent, thereby providing Respondent with a total sum of $11,000.00. c. Respondent performed a demolition of the existing patio and patio cover. In addition, he placed rebar in the ground, in preparation for the concrete pour for the addition slab. d. Sometime after placing the steel in the ground for the concrete placement, Respondent stopped working on the project and never returned to perform any further work. Thus, the only thing that Complainants received, for their payment of $11,000.00, was the tear out of the patio and the preparation for the new concrete placement. e. Respondent failed to obtain the required permit to commence work on the project.

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

4. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been revoked since January 28, 2008. Such revocation 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 revoked license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already revoked license.

5. 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 above-described license revocation. 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.

CONCLUSIONS OF LAW

1. The undisputed evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154A (1), (2), and (7).

2. There was no evidence presented to show any violation of A.R.S. (13); namely A.R.S. §32-1124B.

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. 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, January 31, 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