ALJDEC decisions subject to certification as final

07F-R0023-ROC · Registrar of Contractors · 2008-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2008 APPEARANCES: Complainant was represented by Assistant Attorney General, Mona Baskin and Respondent appeared through its president and qualifying party, Ronald Reynolds (“Reynolds”). 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 filed the instant Citation and Complaint, alleging that Respondent has an individual listed on the license who also appears on another license which has been previously revoked by final order of the Registrar of Contractors.

2. Evidence of record revealed the following:

a. Reynolds appeared as the vice-president and qualifying party, on the license of Expose Enterprises, Inc. (“Expose”). This license was issued by the Registrar of Contractors on July 16, 2004. David Babekov (“Babekov”) was shown to be the president on this license. b. On or about August 8, 2005, Reynolds advised the Registrar of Contractors, in writing, that he was resigning as qualifying party for Expose and would be disassociated from that license from that date forward. c. Notwithstanding the above mentioned disassociation from Expose, on or about August 17, 2005 an application was filed with the Registrar of Contractors for the license of Respondent named herein. This application shows Reynolds as the president and qualifying party, with Babekov as the vice-president. d. On or about November 23, 2005 Respondent filed a document with the Registrar of Contractors, showing that Babekov was no longer affiliated with Respondent and his name should be removed from Respondent’s license. e. On or about October 20, 2005, a Complaint was filed against Expose, in Registrar of Contractors’ case no. 06-0968. The Complaint was filed by Phoenix Scaffolding and Equipment, Inc. The Complaint alleged that Expose failed to pay Complainant the sum of $3,263.83 for scaffolding rental. According to the Complaint, the rental in question occurred between March 16, 2005 and April 23, 2005. f. Reynolds was still the qualifying party for Expose during the period of time of the aforementioned scaffolding rental. g. A Citation and Complaint was issued in Registrar of Contractors’ case no. 06-0968 on November 23, 2005 and Expose failed to file an answer. A Decision and Order was issued in the matter on February 6, 2006 revoking Expose, unless said contractor paid $3,263.83 to Complainant. When Expose failed to comply with the condition set forth in the Order, the license was revoked effective on April 21, 2006.

3. Reynolds testified that notwithstanding the fact that he was the qualifying party on the Expose license and the scaffolding rental issue in case no. 06-0968 occurred during the period of time he was still acting as the qualifying party for the license, he knew nothing about the project wherein the scaffolding was rented. Moreover, he stated that he never had any notice from the Registrar of Contractors, regarding the Complaint, the Citation or the Decision and Order issued in the matter. Thus, there was nothing he could have done to rectify the problem.

4. According to Reynolds, Babekov was some type of con-man, who duped him into going into business with him. He stated that as far as he knew Expose never did any contracting while he was the qualifying party. Nevertheless, as qualifying party for Expose, Reynolds remains responsible for all contracting type work that occurred while he was acting in that capacity.

5. Reynolds testified that he has been a licensed contractor for over thirty (30) years and only had one filed Complaint on his record during this period of time.

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 the absence of any Complaints 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.

7. Based on all of the facts and circumstances presented herein, it is determined and held that disciplinary sanctions should be imposed against Respondent but that a complete revocation is not warranted, at this time.

CONCLUSIONS OF LAW

1. By virtue of having persons on the license that also appear on another license which had been previously revoked by the Registrar of Contractors, Respondent is found to be in violation of A.R.S. § 32-1154A (21).

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 KB-01 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $3,263.83 to Phoenix Scaffolding and Equipment, Inc. (Complainant in Registrar of Contractors’ case no. 06-0968). It is further recommended that if Respondent pays or tenders the above-described sum of money 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 KB-01 license be placed on a period of 150 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 $1,500.00, 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, January 30, 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