ALJDEC decisions subject to certification as final

07F-M2349-ROC · Registrar of Contractors · 2008-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 21, 2008 APPEARANCES: Complainant appeared through its president and qualifying party, Paul Hoyt (“Hoyt”) 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 perform specified HVAC work on a commercial tenant improvement project. The contract price was $58,900.00. Complainant claims that Respondent has failed to pay a portion of this contract and the facts surrounding this claim are discussed in the findings below.

2. Hoyt testified that there were progress payments to be made pursuant to the aforementioned contract. The third progress payment was received by Complainant on or about December 5, 2006, via Respondent’s check. The bank would not honor this check.

3. After numerous unsuccessful attempts to have Respondent make the check good on progress payment no. 3, Complainant ultimately filed the instant Complainant with the Registrar of Contractors.

4. According to Hoyt, Complainant was finally able to cash the check for progress payment no. 3 on September 11, 2007. Thus, this payment was received nine months late. After cashing this check, Respondent still has a contract balance due to Complainant in the amount of $7,588.75.

5. Uncontroverted evidence of record showed that Complainant completed the work on the project on or about December 2006 and complied with all punch list items required at the conclusion of the project.

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

7. The evidence of record established a failure by Respondent to pay for construction services rendered. In addition, this failure to pay is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

8. 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 failure to renew since October 1, 1007. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended 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 suspended license.

9. 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 matter was resolved or closed subsequent to issuance of a Corrective Work Order or Citation and there are three open Complaints. 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

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-01 license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays or tenders to Complainant the sum of $7,588.75, 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-01 license shall be placed on active suspension for a period of l4 days followed immediately by a period of disciplinary probation for 180 days. 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 $7,500.00, 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 25, 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