ALJDEC decisions subject to certification as final

08F-H0276-ROC · Registrar of Contractors · 2009-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2009 APPEARANCES: Complainant appeared through its Bullhead City Division manager, John Babos 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. Complainant was retained by Respondent to install mirrors and medicine cabinets in three of Respondent’s new home construction projects. Complainant completed the work on or about June 2007.

2. Evidence of record showed that the total billing for the above- described mirror and medicine cabinet work came to a total of $1,943.00. Despite repeated attempts to obtain payment from Respondent, Complainant has not been paid anything for its work.

3. Respondent’s failure to pay Complainant for the work performed on the three construction projects constitutes not only a violation of the statute requiring contractors to pay for work performed but also 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 failure to renew since October 1, 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 in order to avoid a suspension of an already suspended license.

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 and said notice revealed four (4) open complaints and one (1) matter that had been closed as resolved/settled/withdrawn. Therefore, Respondent’s prior record is properly deemed to be poor, especially in light of the fact that the license was only issued in September 2006, 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. It is further recommended that if Respondent pays or tenders to Complainant the sum of $1,943.00, 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 B license shall be placed on active suspension for a period of l0 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, 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 $2,000.00, 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, February 12, 2009.

______________________________________ Mark A. Silver 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 ___________________________

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