ALJDEC decisions subject to certification as final

07F-L0519-ROC · Registrar of Contractors · 2008-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 2008 APPEARANCES: Complainant appeared on his own behalf 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. On the day of the scheduled hearing, but prior to commencement of the instant hearing, Respondent filed a request to continue.[1] Although Complainant did not have a copy of same at the time of the hearing, the motion was read onto the record and Complainant voiced opposition to the filed motion.

2. The motion was not filed in accordance with A.A.C. R2-19-106 (C) and failed to show adequate cause for the late filing. Complainant indicated that he had gone to considerable expense to travel from Oregon to the hearing site and was not advised of any request to continue, prior to leaving his home in Oregon. Upon review and consideration, motion for continuance was denied, no adequate cause appearing. Since Respondent had not received any notification that the motion had been granted, it remained on notice that the hearing would proceed as scheduled.

3. Uncontroverted evidence of record established the following:

a. Complainant and Respondent entered into a contract on or about December 2005, wherein Respondent was to construct a personal residence for Don Carroll (“Carroll”), Respondent’s member and qualifying party. Complainant agreed to provide all of the money to construct the home and at the conclusion of the project, was to receive some sort of payment either from Carroll or share in the profit of the home if it was to be sold to another person. b. Complainant obtained construction financing and purchased the lot. In addition, disbursements were made from his construction loan in the amount of approximately $18,000.00. c. The project was never commenced in a timely manner by Respondent and ultimately, in August 29, 2006 Complainant fired Respondent from the project. d. Complainant ultimately retained another contractor to complete the project. e. Complainant contends that he has suffered monetary losses due to the failure of Respondent to construct the home in a timely manner. Among other things, he contends that he lost $10,000.00 in an interest reserve on the construction loan and there has been no accounting by Respondent for the above-described $18,000.00 disbursement from the construction loan.

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

5. The evidence of record supports a finding that by virtue of Respondent’s failure to commence work on the project in a timely manner, it effectively abandoned the project, without legal excuse. Respondent’s conduct on this project is also found to be a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

6. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been revoked as of December 4, 2007. Such revocation 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 revoked license status must be considered when determining appropriate penalties in this case.

7. 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 numerous prior complaints that had gone into the hearing process, resulting in severe disciplinary sanctions. Therefore, Respondent’s prior record is properly deemed to be extremely poor and thus, is viewed as a matter in serious 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 (1) 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. 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, April 29, 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 late filing of the motion effectively prevented any ruling prior to the time of the scheduled hearing.

-----------------------

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