ALJDEC decisions subject to certification as final

2010A-1083343-ROC-com · Registrar of Contractors · 2012-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Gael Gilliland. 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 on Compliance Hearing are made: FINDINGS OF FACT 1. The Respondent’s Class L-39 (No. 150442) License was suspended by the Registrar of Contractors on July 21, 2010. 2. The Order Reopening Complaint and Setting Compliance Hearing provides, in pertinent part, as follows: Upon review and consideration of Complainant’s Request to Reopen, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that Case No. 2010-1083343 be REOPENED. IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has engaged in conduct constituting violation of A.R.S.§ 32- 1154(A)(11) set forth in the Citation and Complaint and breached the terms set forth in the parties’ Settlement Agreement. If the assigned Administrative Law Judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement.

3. Undisputed credible testimony and evidence established that the Complainant delivered $18,958.50 worth of HVAC materials to the Respondent, which the Respondent then installed in various commercial construction projects the Respondent performed construction work on. 4. Undisputed credible testimony and evidence established that the owners of the various commercial construction projects paid the Respondent in full for the material and labor utilized on the various commercial construction projects. 5. Undisputed credible testimony and evidence established that the Respondent failed to pay the Complainant the $18,958.50 that was due to the Complainant for the HVAC materials that were delivered to the Respondent. 6. There was no dispute that on February 24, 2009, the parties entered into a Settlement Agreement wherein the Respondent agreed to pay the undisputed sum of $18,958.50 to the Complainant by making monthly payments of $1,579.90 to the Complainant on the last day of each month beginning on the last day of March, 2009. 7. There was no dispute that the Respondent failed to make any monthly payments to the Complainant in accordance with the terms of the parties’ Settlement Agreement and that the Respondent failed to comply with the terms of the parties’ Settlement Agreement. 8. 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 resolve this matter by complying with the terms and conditions of the parties’ Settlement Agreement. On the contrary, credible evidence of record established that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the parties’ Settlement Agreement. 9. Undisputed credible testimony and evidence established that the Complainant has been able to collect a portion of the money owed to it by filing liens on the commercial properties at issue. 10. Undisputed credible testimony and evidence established that Respondent still owes the sum of $11,997.18 to the Complainant for the HVAC materials furnished by the Complainant to the Respondent n this matter. 11. The Respondent‘s failure to pay the aforementioned sum of $11,997.18 to Complainant is not found to be in good faith and 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 A.R.S. § 32-1154 (A) (11). CONCLUSIONS OF LAW 1. .A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the contractor’s license. 2. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the parties’ Settlement Agreement. 3. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due for materials rendered in connection with the licensee’s operations as a licensed contractor). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be immediately revoked.

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, January 18, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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