ALJDEC decisions subject to certification as final

07F-F0207-ROC · Registrar of Contractors · 2008-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 2008

APPEARANCES: Complainant appeared through its president, Mark Taesali (“Mark”) 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 contract, Complainant provided Respondent with labor and materials for a construction project. Complainant contends that it has not been paid for a portion of the work and/or materials. The facts surrounding the claim are discussed in the findings below.

2. Uncontroverted evidence of record established that Complainant performed a carpet installation for Respondent and, in addition, supplied Respondent with specified decorative glass and natural stone tiles. These activities occurred on or about April 2006.

3. Although Respondent paid a portion of the billings from Complainant, evidence of record showed that Respondent failed to pay an outstanding balance of $1,539.94. After repeated attempts to get Respondent to pay the outstanding balance on the contract, Complainant ultimately filed a claim with the Justice Court in Verde Valley, in case no. CV20081789.

4. At the instant hearing Complainant submitted into evidence a copy of the judgment in the above-described case no. CV20081789. This document shows that the Court ruled in favor of Complainant and entered a judgment against Respondent in the amount of $1,539.94, plus court costs of $80.00, with interest at the rate of 10% per annum beginning August 10, 2006. The prior court decision is binding upon the parties and this Tribunal by the principles of res judicata.

5. Based on the foregoing, it is determined and held that Respondent failed to pay Complainant for services rendered in the course of Respondent’s construction work. This failure to pay Complainant constitutes a violation of the applicable charged section of the State’s Contracting laws regarding the requirement to pay for construction services and said failure to pay is also found to be a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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

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 14, 2008. 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.

8. 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. Therefore, Respondent’s prior record is properly deemed to be good 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

1. It is a well settled doctrine and policy of law that final judgments of civil courts may not be subject to collateral attack in subsequent proceedings. The findings and judgment in Justice Court case no. CV20081789 are res judicata as to the issues and allegations in the instant complaint.

2. 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 B license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays to Complainant the total amount of the judgment in case no. CV20081789, 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 B license shall be placed on active suspension for a period of 7 days followed immediately by a period of disciplinary probation for 180 days. 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 $1,500.00, 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, July 25, 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