ALJDEC decisions subject to certification as final

2010A-19327262-ROC · Registrar of Contractors · 2010-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Timothy D. Ducar. Respondent Consolidated Demolition Inc. (Corp.) (“CDI”) appeared through its authorized representative, Nicole Howlett. Respondent Stryker Demolition LLC (LLC) (“Stryker”) appeared through its authorized representative, Juan Sanchez. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT

1. Respondent CDI is the holder of License No. 251940, Class K-57 issued by the Registrar of Contractors. The Class K-57 License of Respondent CDI is on inactive status. 2. Respondent Stryker is the holder of License No. 255999, Class K-57 issued by the Registrar of Contractors. 3. At the conclusion of the evidentiary portion of the consolidated hearing the Complainant withdrew, without objection, its complaint against Respondent Stryker. 4. This is a commercial matter where the Complainant performed construction work on a commercial construction project for Respondent CDI. 5. The Complainant was dissatisfied with the alleged poor workmanship, alleged lack of professionalism and alleged unethical behavior and filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. The Complainant’s complaint provides, in pertinent part, as follows: Company (CDI) has failed to pay its obligations $43,368.58…Additionally, CASI (Complainant) is due $13, 320.00 from monies extorted from CASI. Mr. Wommer fraudulently represented and took advantage of a naïve employee who was filling in for the CFO…stating that CDI was due money from a joint check which represented a progress payment that belonged 100% to CASI. With the CFO out, Mr. Wommer badgered the employee and refused to deliver the $68,940.00 check to CASI unless CASI cut him back a check for $13,320.00…Once the check was cut Mr. Wommer immediately went to the bank and cashiered the check to CDI to avoid CASI from issuing a stop payment and then he deposited funds into their CDI account and immediately got two checks cut from the bank, one to himself and one to Ms. Howlett…CDI was set up under fraudulent pretenses-Ms. Nicole Joleen Howlett was an employee of IDRA owned by Mr. John Wommer. When Mr. Wommer’s licenses for his two companies, IDRA and US Crushing were revoked on 11/7/08, he arranged for Ms. Howlett to obtain a new company and ROC License so he could continue in business. 7. Credible testimony and evidence, presented at hearing, established that Respondent CDI owes the Complainant the sum of $43,368.68 for construction work that the Complainant has performed for CDI and that said sum remains unpaid despite repeated billings and demands for payment by the Complainant. 8. There was no dispute that Mr. John Wommer is on two licenses which have been previously revoked by the Registrar of Contractors. 9. Credible testimony and evidence established that Mr. John Wommer could not qualify for a contractor’s license because of his past license history with the Registrar of Contractors. 10. Credible testimony and evidence, presented at hearing, established that Respondent CDI was a company which was set up by Mr. John Wommer to avoid the state’s contracting laws and to obtain a contractor’s license and operate a construction business despite Mr. Wommer’s inability to obtain a contractor’s License from the Registrar of Contractors. 11. Credible testimony and evidence established that Ms. Howlett aided and abetted Mr. Wommer’s actions in evading the state’s contracting laws by acting as the qualifying party for the new company. 12. Credible testimony and evidence established that Mr. John Wommer operated as the owner/manager of Respondent CDI. 13. Credible testimony and evidence established that the Registrar of Contractors would not have issued a license to the Respondent if the Registrar had been aware that Mr. John Wommer was going to be the owner and operator of Respondent CDI. 14. The credible evidence of record is insufficient and fails to support a finding as to whether Ms. Howlett misrepresented her work qualifications in order to serve as the qualifying party for Respondent CDI’s License. 15. Credible testimony and evidence established that Respondent CDI wrongfully obtained the sum of $13,320.00 from the Complainant and that Respondent CDI has repeatedly failed to return the $13,320.00 to the Complainant despite the Complainant’s repeated demands that it do so. 16. The actions of Respondent CDI, in obtaining a contractor’s license to be owned and run by an individual who could not qualify for a contractor’s license and failing to list this person on the Respondent’s license application and in wrongfully obtaining $13,320.00 from the Complainant and in failing to pay the Complainant monies when due, are found to constitute a wrongful act. 17. Undisputed credible testimony and evidence established that Respondent CDI failed to perform its construction work in a professional and workmanlike manner. 18. Notice is taken of the Respondent CDI’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Credible testimony and evidence established violations by Respondent CDI of the provisions of A.R.S. § 32-1154A(6) (Misrepresentation of a material fact), A(7) (Wrongful Act), A(10) (Aiding or abetting of a an unlicensed person to evade this chapter), A(11) (Failure to pay monies when due), A(20) (Subsequent discovery of funds which if known at the time of issuance of a license would have been grounds for the denial of the License) and A(3); NAMELY, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. The credible evidence of record failed to support a finding that Respondent CDI violated the charged provisions of A.R.S. § 32-1154A(12), A(15), A(16), and A(18) as charged in the Citation and Complaint. 3. The Complainant withdrew its Complaint against Respondent Stryker Demolition LLC.

RECOMMENDed orders

1. In view of the foregoing, it is recommended that License No. 251940, Class K-57, of Respondent Consolidated Demolition Inc (Corp.) shall be revoked. 2. In view of the foregoing, it is recommended that the Citation and Complainant against License No. 255999, Class K-57, of Respondent Stryker Demolition LLC (LLC) shall be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification.

Done this day, May 24, 2010.

/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