ALJDEC decisions subject to certification as final

08F-0232-ROC · Registrar of Contractors · 2008-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 2008. APPEARANCES: John Spensieri appeared personally. Crescendo Design Build Develop, LLC did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Crescendo Design Build Develop, LLC (“Respondent”) is the holder of License No. 171373, a Class KB-02 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. In October of 2005, John Spensieri (“Complainant”) entered into a written contract with Respondent, who agreed to serve as the general contractor for the construction of Complainant’s new residence in Phoenix, Arizona. 3. Complainant later filed a written Complaint with the Registrar alleging that Respondent had failed to pay certain subcontractors and suppliers after Complainant had paid Respondent money for such services. The Complaint also alleged that Respondent owed Complainant an additional sum of $75,583.94 and $492.00, the latter amount being for unspecified expenses. 4. As a result of the Complaint, the Registrar issued a Citation and Complaint in Case No. 08-0232 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (1), (7), (9) and (11). 5. The Registrar forwarded Case No. 08-0232 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 08-0232 advising the parties of the time, date and location of the evidentiary hearing. The Notice of Hearing was sent to Complainant, Respondent and Respondent’s counsel of record at their respective addresses on file with the Registrar. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. There is credible evidence that Respondent failed to pay Pinnacle Windows and Doors the sum of $25,998.42 after receiving said sum from Complainant with the intention that Respondent pay the amount due. 9. There is credible evidence that Respondent failed to pay Williams Jackson the sum of $13,932.00 for cabinets after receiving said sum from Complainant with the intention that Respondent pay the amount due. 10. Complainant could not explain the basis for his claim of entitlement to an additional payment of $492.00 from Respondent. 11. Respondent abandoned Complainant’s project. Complainant took over the project to complete the house. 12. Respondent’s abandonment of Complainant’s project, its failure to pay the above-described subcontractors/suppliers, and its failure to complete the project for the contracted amount by retaining the funds owed to the subcontractors/suppliers are wrongful acts that substantially injured Respondent. 13. The parties are involved in civil litigation in Case No. CV2007-017801 before The Honorable A. Craig Blakey, II of the Superior Court of Maricopa County, Arizona. The resolution of the parties’ financial disputes should be resolved in their civil litigation rather than in this administrative proceeding. 14. The Registrar’s official records reflect that Respondent’s contracting license was suspended by operation of law on December 9, 2007 for lack of bond, and again on February 1, 2008 for nonrenewal. Respondent’s contracting license was suspended on February 13, 2008 until it complies with the Registrar’s Order in Case No. M07-2313. Respondent’s license has three open Complaints, one disciplined Complaint, and two resolved/settled/withdrawn Complaints.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the suspensions of Respondent’s contracting license does not deprive the Registrar of jurisdiction to initiate this disciplinary proceeding or to impose disciplinary action against Respondent for proven statutory violations in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as cited in the Citation and Complaint issued by the Registrar in Case No.08-0232. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar in Case No.08-0232. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (9), as cited in the Citation and Complaint issued by the Registrar in Case No.08-0232. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as cited in the Citation and Complaint issued by the Registrar in Case No.08-0232.

RECOMMENDED ORDER

Respondent’s License No. 171373 shall be revoked on the effective date of the Order entered in Case No. 08-0232. 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 will be 45 days from the date of that certification.

Done this day, June 25, 2008

______________________________________ Brian Brendan Tully 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