ALJDEC decisions subject to certification as final

08F-A0421-ROC · Registrar of Contractors · 2009-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 2009 APPEARANCES: Complainant appeared through its president and qualifying party, Bruce Kasemeier (“Kasemeier”) and Respondent appeared through its president and qualifying party, Jody Zito (“Zito”). 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 install the plumbing on a new home construction project. Complainant contends that it has not been paid in full for the work performed and the issues surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Kasemeier testified that on or about April 2006 he completed the final phase of the plumbing work on Respondent’s new home construction project. He initially testified that the billing at this time was for $4,161.60. Respondent failed to pay this billing, causing Complainant to file the instant Complaint with the Registrar of Contractors. b. Kasemeier further testified that Respondent made a payment of $3,000.00 on the above-described invoice. Apparently, this payment was made by Respondent prior to the filing of the instant Complaint since the Complaint states that the outstanding balance owed for the plumbing work was $2,074.39. c. Later in the hearing, Kasemeier changed his testimony to indicate that the sum of $5,074.39 was due and owing to Complainant at the time that Respondent made the aforementioned $3,000.00 payment. d. Kasemeier also testified that he has added interest to the unpaid balance claimed due and owing from Respondent. However, he did not present any evidence to establish that the applicable contract between the parties provided for interest, in the event of a delayed payment by Respondent. e. Zito testified that Respondent does, in fact, owe Complainant money on the plumbing work in question. However, due to the downturn in the economy, Respondent has been unable to pay the total amount to Complainant. Nevertheless, in this regard it has attempted, through partial payments, to pay off the debt to Complainant. f. Zito contends that Respondent has made a $500.00 payment to Complainant that Complainant does not show in its records.

3. The evidence of record showed that Respondent has failed to pay an amount in excess of $750.00 to Complainant for construction services rendered. Nevertheless, the record is unclear regarding the exact amount that remains due and owing to Complainant at this time.

4. The instant matter is an administrative, disciplinary proceeding relating to a contractor’s license. The Registrar’s role in this matter is not one of a collection agency or judicial tribunal, but merely one duty- bound to determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a Complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a Complainant the right to receive any particular individualized relief or an order imposing any particular discipline.

5. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license was revoked, effective on October 16, 2008. Such revocation 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 revoked license status must be considered when determining appropriate penalties in this case.

6. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed two matters that resulted in discipline, three open Complaints, and two matters that were closed as resolved/settled/withdrawn. Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

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 B license shall be revoked on the effective date of the Order entered in this matter. 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, February 25, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors William A. Mundell Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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

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