ALJDEC decisions subject to certification as final

08F-1718-ROC · Registrar of Contractors · 2008-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2008 APPEARANCES: Complainant appeared through its general manager and qualifying party, Gary Lahr 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 concrete saw cutting and concrete demolition for numerous projects. The work performed by Complainant for Respondent occurred over several years.

2. Uncontroverted evidence of record established that Respondent failed to pay Complainant for the above-described construction work during the period of time from September 14, 2007 through December 27, 2007. Complainant issued numerous invoices for the work performed during this period and the total of said invoices is $10,776.50.

3. Not even the filing of the instant Complaint with the Registrar of Contractors caused Respondent to make any type of payment or payment arrangement on the above-described $10,777.50. Respondent’s failure to pay Complainant for this work constitutes not only a violation of the statute which requires contractors to pay for construction services rendered, but it is also deemed to be a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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

5. 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 lack of a proper bond since October 7, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar 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 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 K- 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 $10,776.50 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 K-09 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 $5,000.00, 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, December 18, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 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