ALJDEC decisions subject to certification as final

08F-3122-ROC · Registrar of Contractors · 2010-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 9, 2010 at 10:00 a.m. APPEARANCES: The Complainants appeared through Lisa Kozlowski. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent’s Class K-31 License expired on July 1, 2009. 2. This is a residential matter where parties entered into contractual negotiations in the later part of June, 2006. 3. There was no dispute that pursuant to the terms of the parties’ undated construction agreement the Respondent agreed to construct a block wall on the Complainants’ property for the total sum of $14,645.00 and that on July 2, 2006 the Complainants paid the Respondent an initial payment of $7,322.50 for the construction of the block wall. 4. There was no dispute that the Respondent’s Class K-31 License had been placed on suspended status on July 1, 2006 for nonrenewal. 5. There was no dispute that the Respondent failed to construct the agreed upon block wall. 6. Credible testimony established that the Complainants found that local flood plain statutes and ordinances prevented the construction of the agreed upon block wall and requested their money back from the Respondent. 7. There was no dispute that the Respondent either knew or should have known that local building code and flood plain requirements precluded the construction the agreed upon block wall. 8. There was no dispute that the Respondent agreed to return the Complainants’ money to them but was unable to so because the Respondent had utilized the Complainants’ money for purposes other than the Complainants’ construction project. 9. There was no dispute that the parties then entered into a payment agreement wherein the Respondent agreed to make monthly payments to the Complainants. 10. There was no dispute that the Respondent made only one of the agreed upon payments and then failed to make any further monthly payments. 11. Undisputed credible testimony and evidence established that the Respondent owes the Complainants the sum of $5,822.50 as restitution for the remainder of the down payment paid to the Respondent for which the Respondent performed no work and the Complainants received no benefit. 12. Undisputed credible testimony and evidence established that Complainants received no value for the money that they paid the Respondent. 13. The Respondent’s actions, in entering into a construction agreement and accepting money from the Complainants after the Respondent’s Class K-31 License had been suspended and in failing to comply with its agreement to repay the Complainants for their down payment, are found to constitute a wrongful act. 14. Undisputed credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms and conditions of the Respondent’s agreement to repay the Complainants for their down payment. On the contrary, the Respondent’s efforts appear to have been directed to delay and excuse payment to the Complainants rather than to comply with the Respondent’s agreement to repay the Complainants’ money to them. 15. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Undisputed credible testimony and evidence established violations by the Respondent of the provisions of A.R.S. § 32-1154A(1) (Abandonment), A(2) (Disregard of applicable building codes), A(7) (Wrongful Act), A(18) (Contracting or offering to contract while license under suspension) and A(13); namely, A.R.S. §32-1123B..

RECOMMENDed order In view of the foregoing, it is recommended on the effective date of the Registrar’s Order that the Respondent’s Class K-31 License shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has properly, as restitution for the Complainants’ down payment, paid the Complainants the sum of $5,822.05,. It is further recommended that if the Respondent properly accomplishes the above described action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that this matter be closed. It is further recommended, as an express condition for the next two (2) renewals of the Respondent‘s license, notwithstanding the existence or absence of any uniform assessment by the Registrar of Contractors then in effect, Respondent shall be required to pay an additional $500.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. §32-1132(B). Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of the Respondent’s license until payment is made and the renewal issued. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, February 9, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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