ALJDEC decisions subject to certification as final

08F-L0426-ROC · Registrar of Contractors · 2009-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2009 APPEARANCES: Complainant appeared through its president and qualifying party, William Rohn, 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. Respondent retained Complainant to install garage doors and garage door openers on two (2) new home construction projects.

2. Evidence of record established that Complainant performed the above-described work on a property located on 3940 Flying Cloud, in Lake Havasu City. The work was completed and on December 3, 2007 Complainant invoiced Respondent in the amount of $4,010.00. Respondent has failed to pay any portion of this billing.

3. Further evidence of record showed that Complainant completed specified garage door installation work on a property located at 1046 Montrose Drive, located in Lake Havasu City. On December 31, 2007, Respondent was billed the sum of $1,945.00 for this work. Respondent has failed to pay any portion of this billing.

4. Respondent’s failure to pay the above-described bills constitutes a violation of the charged section of the State’s contracting laws regarding the need to pay for construction services rendered. In addition, the failure to pay these bills is also viewed as a wrongful act within the meaning of the applicable charged section of the State’s contracting laws.

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

6. Respondent’s failure to pay Complainant for the garage door work performed constitutes not only a violation of the statute requiring a contractor to pay for construction services rendered but also a wrongful act, within the meaning of the applicable charged section of the State’s contracting laws.

7. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been revoked since January 22, 2009. Such revoked license status 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 revoked license status must be considered when determining appropriate penalties in this case.

8. 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 information revealed that Respondent has eighteen (18) open Complaints and one matter that resulted in the above-described disciplinary action. Therefore, Respondent’s prior record is properly deemed to be extremely 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

Undisputed evidence of record established that 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 the sum of $5,955.00 to Complainant, 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 14 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 $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, May 5, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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