ALJDEC decisions subject to certification as final

08F-T1205-ROC · Registrar of Contractors · 2009-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2009 at 11:00 a.m. APPEARANCES: The Complainant appeared through its attorney, M. C. Goldsen. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The Respondent’s Class B- License No. 155780 expired on June 1, 2009. 2. There was no dispute that pursuant to the terms of the parties’ construction agreement the Complainant performed specified framing work on a construction project, wherein the Respondent was acting in the capacity of a general contractor. 3. Undisputed credible testimony and evidence established that the Complainant completed all of the specified work, including authorized extras and change orders. 4. Undisputed credible testimony and evidence established that the sum of $44,942.00 is the proper balance due and owing to the Complainant from the Respondent. 5. There was no dispute that, notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. 6. The instant record demonstrated that the owner of the project has accepted the Complainant’s work on the construction project and, moreover, has paid the Respondent for the framing work performed by the Complainant. 7. The Respondent‘s failure to pay the aforementioned sum to the Complainant is not found to be in good faith. Accordingly, under all of the facts and circumstances presented herein, Respondent’s conduct is found to constitute a wrongful act.

CONCLUSIONS OF LAW 1. The Respondent violated the charged provisions of A.R.S. §32-1154 (A) (7) (Wrongful Act) and A.R.S. § 32-1154 (A) (11) (Failure to pay money when due).

RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Registrar of Contractors’ Order that the Class B- License of the Respondent shall be revoked unless the Registrar of Contractors receives and accepts written proof that Respondent has paid the sum of $44,942.00 to the Complainant. It is further recommended that if the Respondent pays the above described sum of money on or before the effective date of the Registrar’s Order, then the aforementioned license revocation shall not take place and that, instead, the Respondent’s Class B- License shall be suspended for a period of sixty (60) days. It is further recommended, in addition to the above provided penalties, if any, that any restoration of Respondent’s rights to resume contracting, 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 $1,500.00. Such bond or deposit will be for the sole benefit of persons injured as defined in A.R.S. § 32- 1131 (3) and will 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, if no claims are then pending.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, October 28, 2009

______________________________________ M. Douglas 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 ___________________________ -----------------------

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