ALJDEC decisions subject to certification as final

08F-0240-ROC · Registrar of Contractors · 2008-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2008

APPEARANCES: Complainant appeared through its accounts receivable clerk, Karen Speros 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 contractual arrangement, Respondent rented a skid- steer loader and a dump trailer from Complainant. Complainant contends that Respondent failed to pay the rental on these items and the facts surrounding this claim are discussed in the findings below.

2. On or about March 23, 2007, Respondent rented the items in question. For the skid-steer loader, Respondent provided a check in the amount of $1,293.60. When Complainant attempted to cash this check, it was returned to Complainant due to a stop payment order from Respondent to its bank.

3. Respondent failed to return the dump trailer and after repeated demands for the return of said item by Complainant, the item was finally located one morning in Complainant’s parking lot. Respondent paid nothing for the extended period of time that it had the dump trailer in its possession.

4. Uncontroverted evidence of record showed that the rental fees for both the skid-steer loader and the dump trailer came to a total of $4,398.24. Respondent has failed to pay Complainant any portion of this rental fee, even after the filing of the instant Complaint with the Registrar of Contractors.

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

6. Respondent’s failure to pay Complainant for the rentals in questions not only constitutes a violation of the charged section of the State’s Contracting laws regarding the need to pay for services rendered in its construction business but said failure to pay is also viewed as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

7. 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 April 1, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors 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.

CONCLUSIONS OF LAW

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 C- 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 the sum of $4,398.24 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 C-21 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, 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 $4,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation 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, April 22, 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 ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826