ALJDEC decisions subject to certification as final

07F-M2012-ROC · Registrar of Contractors · 2008-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 2, 2008 APPEARANCES: Complainant appeared through its secretary/treasurer, Michele Kopfmann 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 contractor’s license, no. 187364.

2. Pursuant to contract, Respondent retained Complainant to provide and install several garage doors, along with garage door openers and specified door hardware. Complainant contends that Respondent has failed to pay for these materials and services. The issues surrounding this claim are discussed in the findings below.

3. The following uncontroverted facts were established at the hearing:

a. On or about November 13, 2006, Complainant issued an invoice to Respondent in the amount of $4,560.04. This invoice represented three garage doors installed on Respondent’s new home construction project, along with three Liftmaster garage door openers and a keyless entry device. b. There were no complaints received by Complainant regarding the work on the above-described garage doors. However, Respondent failed to pay Complainant for any portion of the garage door installation work. c. On or about December 26, 2006 Complainant provided Respondent with specified garage door hardware and in this regard issued an invoice to Respondent in the amount of $150.00. Respondent has failed to pay any portion of this invoice. d. Complainant attempted on numerous occasions to contact Respondent regarding payment of the outstanding invoices and was unsuccessful in obtaining any payment from Respondent. Thus, Complainant filed the instant Complaint with the Registrar of Contractors. e. Notwithstanding the filing of the instant Complaint, Respondent has made no effort to make any type of payment arrangements with Complainant.

4. Respondent’s failure to pay Complainant for the garage door installation work and the door hardware 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. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since April 20, 2007 and the license was ultimately cancelled on July 17, 2007. Such suspension and/or license cancellation does not preclude this tribunal from conducting these administrative proceedings, nor does it preclude the Registrar of Contractors from issuing disciplinary orders. Moreover, Respondent’s existing cancelled license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to comply with an Order of the Registrar in order to avoid a suspension of an already cancelled license.

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 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 numerous open Complaints on said record. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or 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 B license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pay or tenders the total sum of $4,710.04 to Complainant, 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 one year. 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 $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, January 7, 2008

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 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