ALJDEC decisions subject to certification as final

07F-G1821W-ROC · Registrar of Contractors · 2008-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 6, 2008 APPEARANCES: Complainant was represented by its attorney, William O’Leary 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, Respondent retained Complainant to accomplish specified paint work on its new homes construction project. Complainant contends that is has not been paid for a portion of this work. The facts surrounding this claim are discussed in the findings below.

2. Uncontroverted evidence of record established the following:

a. Complainant painted the interior and exterior on a home located on Lot 19 of Respondent’s subdivision. Complainant issued an invoice, no. 1430, on August 25, 2006, in the amount of $14,887.04 for labor. Respondent failed to pay this invoice. b. On or about August 25, 2006, Complainant issued another invoice, no. 1431, for paint work on Lot no. 15 in Respondent’s subdivision. This invoice shows a labor balance of $2,639.60 and Respondent has failed to pay this invoice. c. On or about September 25, 2006, Complainant issued an invoice for paint labor on lot 21 in Respondent’s subdivision. This invoice shows a balance of $4,226.35 and Respondent has failed to pay this invoice. d. On or about October 17, 2006, Complainant issued an invoice for paint work on the subdivision walls in Cottonwood Estates, in the amount of $1,759.50. The documentation for this work is invoice no. 1468. Respondent failed to pay this invoice. e. On or about November 6, 2006, Complainant issued an invoice for painting walls at the main entrance of Complainant’s new subdivision. The invoice for this work is invoice no. 1489 and the amount of the invoice is $3,690.00. Respondent failed to pay this invoice.

3. Respondent’s failure to pay Complainant for the painting work described in the foregoing findings of fact constitutes a violation of the charged section of the State’s Contracting laws regarding the need to pay for construction service rendered. In addition, this failure to pay is also viewed as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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

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 absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. However, the record does show that one (1) matter was resolved or closed subsequent to issuance of a Corrective Work Order or Citation and there are five (5) open Complaints on the record. 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

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 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 total sum of $27,202.49, 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 21 days followed immediately by a period of disciplinary probation for two (2) years. 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 $15,000.00, 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. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative penalties, that as an express condition for the next 2 renewals of Respondent’s license, notwithstanding the existence or absence of any uniform assessment by the Registrar then in effect, Respondent shall be required to pay an additional $350.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. § 32- 1132B. Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Respondent’s license until payment is made and the renewal issued. 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, August 11, 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