ALJDEC decisions subject to certification as final

07F-M2218-ROC · Registrar of Contractors · 2008-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2008 APPEARANCES: Complainant was represented by its attorney, Michael Schern 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 remodel/restoration work. Complainant alleges that Respondent has failed to pay for one of the projects in question and the facts surrounding said claim are discussed in the findings below.

2. Respondent was shown to be in the business of reconstruction for buildings that have suffered some type of disaster, such as flood or fire. Respondent retained Complainant to perform specified framing, drywall, application of texture, painting and cabinet work on several projects.

3. Although Complainant completed all of the contracted work and was not advised of any outstanding punch-list work, Respondent failed to pay Complainant for its work on two of the projects, known as Delaney and Bergo. Due to Respondent’s failure to pay on these two projects, Complainant filed the instant Complaint with the Registrar of Contractors.

4. Evidence of record showed that shortly before the date of the instant hearing, Respondent finally paid Complainant for all of the work performed on the Delaney project. However, it continues to owe Complainant the sum of $6,200.00 for the work performed on Bergo. Evidence of record showed that Complainant completed the Bergo project in March 2007.

5. Complainant’s corporate officer/qualifying party, Ryan Grannis (“Grannis”) appeared at the hearing and provided testimony. Grannis testified that due to the late payment on the Delaney project and the failure to pay the outstanding $6,200.00 on the Bergo project, Complainant has suffered financial hardship, as manifested by the need to lay off employees, inability to make timely payments to Complainant’s vendors, and a repossession of Complainant’s truck.

6. Respondent’s failure to pay Complainant for the work on the Bergo project is not only found to be a violation of the charged section of the State’s Contracting law, regarding the need to pay contractors for work on construction projects, but also a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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

8. 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 although said notice revealed no prior disciplinary sanctions on Respondent’s record, there were six (6) open Complaints and one matter that had been placed in the category of resolved/settled, withdrawn. Therefore, Respondent’s prior record is properly deemed to be less than stellar 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

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 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 pay or tenders the sum of $6,200.00 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 KB license shall be placed on active suspension for a period of l4 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 $6,000.00, 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, February 14, 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