ALJDEC decisions subject to certification as final

09F-0220-ROC · Registrar of Contractors · 2009-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 2009 APPEARANCES: Complainant was represented by its attorney, Mark Kirkorsky 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 provided construction related materials to Respondent. The total cost of the materials in question was shown to be $4,937.91.

2. Uncontroverted evidence of record established that Respondent failed to pay any portion of the above-described $4,937.91 debt. Moreover, Complainant has received a default judgment from the Maryvale Precinct Justice Court in case no. CC2008-192939 for the $4,937.91, “plus accruing interest at the contract rate of 18.00% per annum from June 1, 2008 until paid in full.” In addition, the Court awarded Complainant attorney’s fees and costs.

3. Respondent’s failure to pay the $4,937.91 is found to not only be a violation of the charged section of the State’s contracting laws regarding the need to pay for construction related services but also 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. 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Contractors and said notice revealed two (2) other open Complaints plus five (5) matters that had been resolved/settled/withdrawn. Therefore, Respondent’s prior record is properly deemed to be 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 (11) and (7).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- 39R license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays to Complainant the full amount due on the judgment in Maryvale Precinct Justice Court case No. CC2008-192939 , 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 C-39R license shall be placed on active suspension for a period of l4 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 $5,000.00, 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, June 18, 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 ___________________________

-----------------------

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