ALJDEC decisions subject to certification as final

07F-G1194-ROC · Registrar of Contractors · 2007-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2007

APPEARANCES: Complainant appeared through its president and qualifying party, Kathleen Dunn (“Dunn”) 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. Dunn contends that Respondent retained Complainant to perform specified tile work on a new home construction project and Respondent has failed to pay the full amount of the contract price for said project. The facts surrounding this claim are discussed in the findings below.

2. Uncontroverted evidence of record established that on or about May 19, 2006, Complainant and Respondent entered into a written contract to have tile installed in Respondent’s new home construction project for Nancy Major (“Major”). The original contract price was $27,767.91, however, Complainant indicated that there was a change order which gave Respondent a credit for $1,100.00 on the contract price.

3. Dunn testified that all of the tile work has been completed, including all punch list issues from Major. Complainant has previously received a progress payment from Respondent. The uncontroverted testimony of Dunn showed that Respondent still owes Complainant an outstanding balance on the contract of $6,579.39. Despite repeated attempts by Complainant to obtain payment from Respondent for this unpaid balance, Respondent has failed to pay Complainant.

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

5. The uncontroverted evidence of Respondent’s failure to pay the outstanding balance on the tile installation contract is found to be a violation of the charged section of the State’s Contracting laws, regarding the need of a contractor to pay for services rendered or materials provided in the course of its construction business. In addition, said failure to pay Complainant is also found to be a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

6. 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 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 (11).

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered to Complainant the sum of $6,579.39. It is further recommended that if Respondent pays or tenders to Complainant the above-described sum of money on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on active suspension for a period of seven (7) days, followed immediately by a period of 180 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above provided penalties, if any, that any continuation or 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 $3,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation 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 17, 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