ALJDEC decisions subject to certification as final

08F-M0323-ROC · Registrar of Contractors · 2008-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 16, 2008 APPEARANCES: Complainant appeared through its president and qualifying party, Patrick Shipp (“Shipp”) 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 accomplish specified stucco work. Complainant contends that it has not been paid for a portion of the work performed and the facts 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. Shipp testified that Complainant worked on two (2) homes in one subdivision and five (5) in another one of Respondent’s subdivision. Shipp testified that the stucco work in question was completed by Complainant and Complainant did not receive any punch list or complaints from Respondent regarding the stucco work. b. After completing the stucco work in question, Complainant issued three invoices, dated August 29, 2006, October 3, 2006, and February 2007. These are the invoices that were not paid by Respondent. c. Shipp testified that the invoices in question relate to lot no. 4 at Beacon Heights, for a billing of $4,020.00 and lot no. 3 at Beacon Heights for a billing of $3,850.00. These two billing were not paid by Respondent. However, the homes were eventually bought by another company, “TNT,” and Shipp testified that in order to obtain a certificate of occupancy, TNT paid Complainant for both of these outstanding invoices. d. In addition to the foregoing, Complainant performed stucco work on five (5) homes located on Michigan Avenue; namely addresses 1105, 1109, 1113, 1117, and 1121 Michigan Avenue. This work involved patio extensions and door patches and was completed by Complainant on or about February 12, 2007. The total billing for this aspect of the contract between the parties was in the amount of $1,067.20. As aforementioned, Respondent was invoiced for this work and has failed to pay for same. e. Shipp pointed out that in the filed Answer to the Citation and Complaint, Respondent admitted that he owed the money that was claimed by Complainant as unpaid balances on the stucco projects.

3. The uncontroverted evidence of record established that Complainant provided construction related services for Respondent and Respondent failed to pay for same, all in violation of the section of the State’s Contracting laws, regarding the need to pay for construction work performed. In addition, this failure to pay 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 Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since June 22, 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 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 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. However, the record does show that one (1) matter was resolved or closed subsequent to issuance of a Corrective Work Order or Citation and there are four (4) open Complaints on said record. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

The 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 KB-02 license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pay or tenders to Complainant the sum of $1,067.20, 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 KB license shall be placed on active suspension for a period of l0 days, followed immediately by a period of disciplinary probation for 180 days. 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 $6,000.00, 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, July 23, 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 ___________________________

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