ALJDEC decisions subject to certification as final

07F-M1909-ROC · Registrar of Contractors · 2008-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2008

APPEARANCES: Complainant appeared through its president and qualifying party, Jay Pendergast (“Pendergast”) 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. Respondent is the holder of a Class B-01 license, no. 133543.

2. Pursuant to contract, Respondent retained Complainant to fabricate and install specified cabinetry in the Ritz Carlton Hotel. Complainant contends that Respondent has failed to pay for this work and the issues surrounding this claim are discussed in the findings below.

3. Uncontroverted evidence of record established the following:

a. The original contract between the parties was in the amount of $57,000.00. Pendergast testified that his original bid was based on plans and specifications provided by Respondent. According to Pendergast, Respondent had highlighted the portions of the plans and specifications that he wanted Complainant to accomplish. b. Once Complainant got into the project, Pendergast discovered that the work was more extensive than what Respondent had highlighted on the plans and specifications. When Pendergast discovered this discrepancy, he was advised by a representative of Respondent not to worry about any extras and just to get the work done. c. On or about September 2006, Complainant completed the cabinetry project at the Ritz Carlton. Although Respondent paid the original contract sum of $57,000.00, it has failed to pay Complainant for necessary extra work performed that was billed in the amount of $3,745.00. d. On or about March 2006 Respondent picked up cabinets from Complainant for another project. The billing for these cabinets was in the amount of $610.00. Respondent has failed to pay this billing. e. Despite repeated demands to be paid for the above-described billings, Respondent failed to pay Complainant. Thus, Complainant filed the instant Complaint with the Registrar of Contractors. f. Notwithstanding the filing of the instant Complaint, Respondent has continued to fail to pay Complainant for the services rendered and materials supplied.

4. Respondent’s failure to pay Complainant for the Ritz Carlton Hotel extra work and the cabinets constitutes a violation of the charged section of the State’s Contracting laws, regarding the need to pay for services rendered and materials supplied to a contractor. In addition, this failure to pay Complainant is also determined to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

5. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation to the charges contained in the issued Citation and Complaint.

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 that the instant complaint was the only complaint 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

Undisputed evidence of record established that 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 to Complainant the total sum of $4,355.00. It is further recommended that if Respondent pays or tenders the above-described sum of money to Complainant 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 $5,000.00, 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, January 10, 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. Phoenix, AZ 85012

By ___________________________

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