ALJDEC decisions subject to certification as final

07F-G1941-ROC · Registrar of Contractors · 2008-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2008

APPEARANCES: Complainant appeared through its secretary, Donna Pinson 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 drywall work on three (3) commercial buildings. Complainant contends that it has not been paid in full for its work on these project and the facts surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. The projects in question all involved tenant improvements. b. The first project was described as the Body Works project. Complainant completed the drywall work for this project on or about December 2006 and invoiced Respondent in the amount of $6,352.00. Initially, Respondent failed to pay any portion of this billing. c. The second project was at 7155 W. Campo Bello. Once again, Complainant installed drywall for this project and completed the work on or about December 2006. The billing here was for the sum of $6,342.00 and Respondent initially failed to pay any portion of this invoice. d. The final project was located at 10001 W. Bell Rd. At this project Complainant performed drywall taping for the sum of $900.00. The work was completed on or about December 2006 and initially there was no payment received from Respondent. e. Uncontroverted evidence of record showed that there were no workmanship related complaints in regard to the work performed by Complainant. f. After trying to receive payment for several months, Complainant ultimately filed the instant Complaint with the Registrar of Contractors on June 13, 2007. g. Subsequent to filing the Complaint with the Registrar of Contractors, on or about October 2007, Complainant received a payment in the amount of $3,594.00 from Respondent. In addition, on or about February 2008 Respondent paid Complainant the sum of $4,500.00. h. After making the above-described payments, Respondent still has an outstanding balance unpaid to Complainant in the amount of $5,500.00. i. Complainant presented testimony showing that it has expended the sum of $3,089.65 in attorney fees, in an attempt to obtain payment from Respondent.

3. Respondent’s failure to pay Complainant for the drywall work performed on the three commercial projects is a violation of the section of the State’s Contracting laws regarding the need to pay for construction services rendered. In addition, Respondent’s failure to pay Complainant for the drywall work is also found to constitute 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 that there were no 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

Respondent violated the provisions of A.R.S. § 32-1154A (11) and (7).

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-01 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $5,500.00[1] to Complainant. It is further recommended that if Respondent pays or tenders 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-01 license be placed on active suspension for a period of five (5) 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 $5,000.00, 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. 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, June 13, 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 ___________________________

----------------------- [1] The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to award any costs or attorney fees to a successful litigant. Thus, in the event that Complainant wishes to recover the expenditure for attorney fees on this matter, such a claim will necessarily have to be brought before a civil court of competent jurisdiction.

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