ALJDEC decisions subject to certification as final

08F-M0211-ROC · Registrar of Contractors · 2008-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 22, 2008 APPEARANCES: Complainant appeared through its member and qualifying party, Ryan Olsen (“Olsen”) 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. Pursuant to contract, Respondent retained Complainant to accomplish rough carpentry for new homes in two subdivisions. Complainant alleges a failure to pay by Respondent for services rendered and/or materials provided. The facts surrounding this claim are discussed in the findings below.

2. The following facts were established by the record presented herein:

a. Respondent was constructing two (2) new subdivisions, known by the names “Roman Estates” and “Milagro.” b. On Lot #129, located in Milagro, Complainant furnished floor truss materials on or about August 2, 2007. Although Complainant was originally retained to install said floor material, Respondent ultimately hired others for the installation. c. Respondent failed to pay Complainant for the floor truss material on Lot #129, despite repeated attempts by Complainant to obtain payment. Finally, after receiving no response to the demand for payment for these materials, Complainant filed a civil lawsuit[1] against Respondent. Olsen testified that Complainant received a judgment against Respondent for this claim, in the amount of $2,499.00. d. Respondent has failed to make any payment on the above-described court judgment. e. On Lot # 21 in the Roman Estates, Complainant supplied materials for the subfloor and installed same. In addition, Complainant also supplied roof trusses. The floor installation was completed by Complainant on or about April 27, 2007 and the materials for the roof structure were shipped to the jobsite on or about May 4, 2007. f. Respondent paid Complainant for the work and materials in regard to the subfloor but has failed to pay Complainant for the roof truss materials. The outstanding unpaid balance for the roofing materials is $8,534.00. g. Complainant began work on Roman Estates Lot # 3. Complainant completed work on the subfloor installation and then the project went on hold status, thereby preventing Complainant from completing any of the other work for this jobsite. Complainant had completed approximately thirty (30) percent of this project. $16,548.82 was shown to be owing to Complainant for this work and Respondent has failed to pay any portion of this outstanding sum. h. The contract document for Lot # 129 in the Milagro subdivision showed that Respondent failed to use the licensed name of M J L Homes on the subcontract agreements with Complainant. Respondent used the name “Caliber Holdings.” i. The contract document for Lot # 129 also does not show Respondent’s license number.

3. Respondent’s failure to pay Complainant for the above-described work and materials constitutes a violation of the charged section of the State’s Contracting laws regarding the need to pay for services rendered and/or materials provided. In addition, this failure to pay Complainant is also found to constitute 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 the license of Respondent has been revoked as of March 28, 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, the existing revoked license status of Respondent 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 violations, that 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 thirteen (13) Complaints that had been resolved/settled/withdrawn and ten (10) open Complaints. 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

Respondent violated the provisions of A.R.S. § 32-1154A (15), (11), (7), (3); namely Rule R 4-9-108, and (13); namely A.R.S. §32-1124B.

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, May 27, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

----------------------- [1] Olsen failed to bring the paperwork regarding the court case and could not recall the specific court or case number for this matter.

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