ALJDEC decisions subject to certification as final

09F-T0221-ROC · Registrar of Contractors · 2009-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared through its attorney, Neal Bookspan. 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 is the holder of a Class B- License issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that pursuant to contract the Complainant performed specified landscaping work on a large residential project wherein the Respondent was acting in the capacity of a general contractor. 3. Undisputed credible testimony and evidence supports a finding that the sum of $431,451.54 is the proper balance due and owing to the Complainant from the Respondent. 4. There was no dispute that notwithstanding repeated attempts and billings over a prolonged period of time said balance remains unpaid. 5. There was no dispute that the Complainant has incurred over $90,000.00 in materials costs in performing the agreed upon landscaping work. 6. Undisputed credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to pay the Complainant. On the contrary, credible evidence of record establishes that the Respondent’s efforts appear to have been directed to delay and excuse rather than to pay the Complainant for its labor and material costs. 7. The Respondent ‘s failure to pay the aforementioned sum of $431,451.54 to the Complainant is not found to be in good faith. Accordingly, under all of the facts and circumstances presented herein the Respondent’s conduct is found to constitute a violation of the applicable charged provisions of the State’s Contracting Laws. CONCLUSIONS OF LAW 1. The Respondent violated the charged provisions of A.R.S. § 32-1154 (A)(11) (Failure to pay monies when due) and A.R.S. § 32-1154 (A)(7) (Wrongful Act). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Class B- License of the Respondent be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $431,451.54 to the Complainant. It is further recommended that if 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 placed on suspension for a period of 30 days to be followed by a period of 180 days disciplinary probation. This alternative disciplinary penalty shall commence on the effective date of the Registrar’s Order or the date, on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. 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, August 20, 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 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com