ALJDEC decisions subject to certification as final

08F-L0121-ROC · Registrar of Contractors · 2009-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2009

APPEARANCES: Complainant appeared through its owner, Robert Bem (“Bem”) 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 contends that Respondent has failed to pay for materials supplied over a specified period of time. The facts surrounding this claim are discussed in the findings below.

2. The following salient facts were established at the hearing:

a. Complainant and Respondent had an ongoing business relationship, wherein Respondent would purchase paint related materials from Complainant.

b. Bem testified that at times Respondent would be late in paying for the materials but ultimately payment would be made. c. During the period of May 29, 2007 through September 10, 2007 Complainant supplied Respondent with paint related materials and Respondent failed to pay for said materials. The total for this period is $15,218.00, including interest penalty fees. d. After being unsuccessful in trying to obtain payment from Respondent, Complainant ultimately filed the instant Complaint with the Registrar of Contractors. The Complaint was filed on October 15, 2007. e. On or about May 10, 2008 Respondent made a payment on the outstanding billing, thereby leaving an unpaid balance of $11,218.00, as of the date of the instant hearing.

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

4. The uncontroverted evidence of record established that Respondent’s failure to pay Complainant the sum of $11,218.00 constitutes a violation of the section of the State’s Contracting laws regarding the need to pay for construction services rendered. In addition, said conduct by Respondent is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

5. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s C-34 contracting license has been suspended by operation of law for a failure to renew the license since October 1, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors 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 the terms and conditions of an Order of the Registrar to avoid a suspension of an already suspended license. Respondent’s L-34 license is in good standing.

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 the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent’s C-34 license. However, the record does show that three (3) matters were resolved or closed subsequent to issuance of a Corrective Work Order or Citation and there are five (5) open Complaints. 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. The L-34 license has no other open Complaints, no disciplinary sanctions, and no matters that were resolved/settled/withdrawn.

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 C- and L-34 licenses 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 total sum of $11,218.00, on or before the effective date of the Order entered in this matter, then the above-provided license revocations shall not take place but instead Respondent’s Class C-34 and L- licenses shall be placed on active suspension for a period of 7 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, on both licenses, for a period of twenty-four (24) months, including future renewal periods, in the amount of $10,000.00, 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, January 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