ALJDEC decisions subject to certification as final

07F-A0247-ROC-com · Registrar of Contractors · 2008-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 10, 2008 APPEARANCES: Complainant appeared through its treasurer, Jeremy Rushton 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 November 7, 2008 which provided that the instant compliance hearing shall be conducted “in order to determine whether the parties have complied with the terms of the settlement agreement. If it is determined that the Respondent has failed to comply with the terms of the settlement agreement, Respondent’s…license…may be subject to the immediate imposition of discipline.

2. Based on the foregoing, Complainant was 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 August 9, 2007. Paragraph no. 2 of the Findings of Fact in the Order of August 9, 2007 provided, in pertinent part, for the following:

a. They will turn their money dispute over to an accountant to determine what if any money remains due and owing by Respondent to Complainant on the Coyote Crest project. In this regard they agreed to hire accountant, John Mahon (“Mahon”) or accountant, Henry Vincent, if Mahon is not available. The parties agreed to turn over all of their documentation, supporting their respective positions on the money payment issue, to the accountant on or before August 25, 2007. b. After the accountant examines the documentation and completes his audit of same, he will issue his findings on the money issue. The parties agree to be bound by whatever determination the accountant makes. If the accountant finds that Respondent still owes Complainant additional sums of money, Respondent shall pay that amount of money to Complainant within two (2) weeks of receiving the accountant’s determination. In the event that the accountant should determine that Respondent does not owe Complainant any additional sums of money, Complainant will accept said determination and Respondent will be under no further obligation to make any additional payments to Complainant. c. The parties will evenly share in the cost of the accountant’s fee for this service. d. Complainant agreed to withdraw the filed complaint.

4. Evidence of record showed that the matter was assigned to an accountant and the accountant made a ruling that Respondent owed Complainant the sum of $18,794.10. This ruling was issued by the accountant on or about October 11, 2007.

5. Uncontroverted evidence of record established that Respondent has failed to pay Complainant any portion of the $18,794.10. In addition, Respondent has failed to pay the accountant for its share of the accountant’s billing for the service provided pursuant to the settlement agreement.

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

7. 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 May 11, 2007. 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.

8. As aforementioned, the Notice of Compliance Hearing, issued by the Registrar of Contractors, indicated that disciplinary penalties may be immediately 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 very 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 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, December 10, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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