ALJDEC decisions subject to certification as final

07F-M2350-ROC · Registrar of Contractors · 2008-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2008

APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, Michael Cordier. 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. Complainant retained Respondent to accomplish specified landscape and concrete work on her property. It was undisputed that Respondent hired an individual, Mike Ortega (“Ortega”), to act as the concrete subcontractor for the project.

2. Complainant has no complaints with the workmanship performed by Respondent on the above-described project. Her only complaint is that Ortega was not a licensed contractor.

3. Uncontroverted evidence of record established that Ortega is not, and was not at the time of the landscape project, a licensed contractor.

4. Shaun Easter (“Easter”), Respondent’s qualifying party, appeared at the hearing and presented testimony. According to Easter, this was the first time that he subcontracted concrete work to Ortega. He contends that prior to hiring Ortega, he inquired of Ortega whether he was licensed. Easter testified that Ortega indicated he was licensed and very experienced in the area of concrete work.

5. Easter testified that it was not until Complainant filed the instant Complaint with the Registrar of Contractors, that he had any information that Ortega was not licensed. He further indicated that had he known, at the time of Complainant’s project, Ortega was not licensed, he would not have contracted with him to perform the concrete aspect of Complainant’s landscape project.

6. Evidence of record showed that Complainant ultimately hired Ortega for a pool remodel project. She testified that she was very dissatisfied with Ortega’s work on the pool remodel project and has lost money on said project, due to Ortega’s failure to complete the project in a proper workmanlike manner. She feels that Respondent is responsible for introducing her to Ortega. Nevertheless, during the course of the hearing she averred that the only issue to be decided at the instant hearing was whether or not Respondent aided and abetted an unlicensed contractor on the original landscape project.

7. Respondent argues that he did not knowingly aid and abet the unlicensed activities of Ortega and therefore and therefore, should not be found to be in violation of the applicable charged section of the State’s Contracting laws. Notwithstanding Respondent’s position, it is incumbent upon any licensed contractor who utilizes subcontractors on their project, to verify that said subcontractors are, in fact, properly licensed. Although the fact that Easter claims he did not know Ortega was unlicensed may tend to explain Respondent’s actions, it does not excuse the fact that Respondent effectively aided and abetted an unlicensed contractor. It is determined and held that Respondent’s use of an unlicensed subcontractor on the landscape project constitutes a violation of the State’s Contracting laws.

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 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

1. A.R.S. §32-1154A (10) provides, in pertinent part, that “aiding or abetting a licensed or unlicensed person to evade this chapter is a violation of the State’s Contracting laws. By virtue of hiring Ortega (an unlicensed contractor) to act as the concrete subcontractor on the landscape project, Respondent violated A.R.S. §32-1154A (10).

2. The evidence of record was inadequate to support any finding of a violation of A.R.S. §32-1154A (1) or (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 K-21 license of Respondent shall be placed on a period of disciplinary probation for 120 days. 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 4, 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