ALJDEC decisions subject to certification as final

08F-2600-ROC · Registrar of Contractors · 2009-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2009

APPEARANCES: Michael Dulberg, Attorney for Complainant; Hector Servin, Complainant's Qualifying Party

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Complainant contracted as a subcontractor to the Respondent on or about June 12, 2007. The contract provided for the Complainant to do mechanical work for $15,120.00. Complainant completed the work and submitted an invoice on July 16, 2007. (Exhibit 2) 2. Despite repeated attempts to collect, the Respondent has paid nothing. The Respondent requested that the Complainant submit numerous requests for payment, a waiver and release from Complainant's material supplier and a maintenance manual. The Complainant submitted to all of those demands, yet the Respondent failed to pay anything or notify the Complainant of any possible workmanship issues. 3. Complainant filed a complainant with the Registrar of Contractors, which ultimately issued a Citation and Complaint. In its answer to the Citation and Complaint, the Respondent asserted that the Complainant should not be allowed to file the complaint until Complainant undergoes mediation as required by the contract between the parties. 4. At the time of the hearing, the Complainant appeared and was accompanied by his attorney. Although additional time was allowed for an appearance, no one appeared on behalf of the Respondent. 5. The Complainant offered evidence on the record to establish the above facts. He stated that he heard the Respondent was not doing business in Arizona anymore but it is still a corporation under Arizona law. Because of the potential harm to the public, he asked that the Respondent's license be revoked. 6. According to the records of the Registrar of Contractors, the license in this matter has 4 open complaints. It was suspended on November 1, 2008 for nonrenewal. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(7) and (11). 3. The Arizona Revised Statutes at § 32-1154(A)(7) provide for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 4. The Arizona Revised Statutes at § 32-1154(A)(11) provide for suspension or revocation of a contractor’s license for the "(f)ailure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the services or material were rendered or purchased." 5. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 6. In this case, the Complainants have established that Respondent violated A.R.S. § 32-1154(A)(7) and (11). The circumstances of the matter justify imposition of revocation against the Respondent’s license. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class B- license shall be revoked on the effective date of the Order entered in this matter. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, January 21, 2009 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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