ALJDEC decisions subject to certification as final

08F-M0327-ROC-com · Registrar of Contractors · 2009-09-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: September 10, 2009 at 1:30 p.m.

APPEARANCES: >The Complainants appeared in their own behalf. >The Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth ________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made.

FINDINGS OF FACT

1. The instant compliance hearing was scheduled on advance written notice duly sent to both parties. Although the start of the scheduled compliance hearing was delayed for over thirty minutes to afford added time in which to make an appearance, the Respondent failed to appear either through an authorized corporate employee or through any proper legal representative.

2. Based upon Complainants’ promptly transmitted report to the Registrar of Respondent’s non-compliance with the payment terms of the parties’ previously concluded settlement agreement, the Registrar ultimately entered an Order re-opening the within complaint and setting the matter for a compliance hearing. Such Order expressly contemplated the imposition of immediate disciplinary action against Respondent’s license in the event that non-compliance by Respondent was demonstrated.

3. Complainants’ uncontroverted testimony revealed that the parties had entered into a settlement agreement at the time that the original hearing in this case had convened on August 14, 2008. Pursuant to the terms of such settlement agreement, all of which were read onto the record, Respondent agreed to pay and Complainants agreed to accept the monetary sum of $3,240.00 in full satisfaction of all issues then pending between them. The mutually agreed sum was to be paid by Respondent to Complainants no later than thirty days after the hearing date, or by September 14, 2008. Respondent had also expressly acknowledged its awareness of the importance of honoring its payment obligations under the concluded settlement agreement.

4. Respondent was shown not to have paid or tendered all or any portion of the agreed settlement amount by the stated deadline date and has still not transmitted any payment as of the date of the compliance hearing one year later. A finding is warranted that Respondent has wholly breached its obligations arising under the settlement agreement, which breach is further found to constitute a matter in aggravation.

5. By the failure of Respondent to appear at and participate in the scheduled compliance hearing in this matter, no evidence in defense of its asserted settlement breach or of any other matters in mitigation was presented to the tribunal. Respondent’s default in appearance at the compliance hearing also is determined to constitute a matter in further aggravation.

6. Under all the circumstances, a modification at this time of the Registrar’s previously entered Order closing the Citation and Complaint is fully appropriate. Unless written proof is promptly filed with the Registrar that Respondent has paid the entire amount of $3,240.00 to Complainants no later than 15 days after entry of the Registrar’s Order on Compliance Hearing, the contracting license of Respondent should be revoked, leaving the Complainants free to seek and obtain an award for their damages from the Residential Contractor’s Recovery Fund. Additionally, the imposition of a further penalty against Respondent’s license consisting of disciplinary probation as well as a bond increase, even if the belated payment of the settlement amount is tendered, is also found and determined to be warranted in this case.

CONCLUSIONS OF LAW

1. The undisputed evidence of record at the compliance hearing adequately established that Respondent has not complied in any way with the terms of the parties’ settlement agreement that had served to have the balance of the prior disciplinary hearing vacated and had also cut short the prior administrative proceeding by the entry of the Registrar’s closing Order.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class K- license shall be revoked fifteen (15) days after the entry of the Registrar’s Order on Compliance hearing.

It is further recommended that if written proof is filed on or before the above-described extended deadline date that Respondent has paid or tendered the sum of $3,240.00 to Complainants, then the revocation penalty shall not be imposed but instead Respondent’s Class K-60 license shall be placed on disciplinary probation for a

period of 90 days. This alternative penalty shall commence, if at all, on the extended deadline date for payment. . It is further recommended, in addition to the above provided revocation penalty or alternative penalty, that any continuation or 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 $3,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation 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.

The Registrar’s Order on Compliance Hearing, when entered, shall constitute a final administrative decision, reviewable pursuant to the provisions of A.R.S.§12-901.

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 will be forty (40) days from the date of that certification.

Dated: September 11, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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