ALJDEC decisions subject to certification as final

2010A-23500266-ROC · Registrar of Contractors · 2010-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 28, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Kathleen McLaughlin. The Respondent appeared through its authorized representative, Vicki Carson. 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. Respondent is the holder of License No. 172410, Class A-, issued by the Registrar of Contractors. 2. Credible testimony and evidence established that pursuant to the parties’ written construction agreement, the Complainant supplied and installed street lighting for a construction project wherein the Respondent was acting in the capacity of a general contractor. 3. There was no dispute that the Complainant completed all of the specified work, including authorized extras and/or change orders and that the Complainant is entitled to payment for its completed construction work. 4. Credible testimony and evidence established that the sum of $60,850.00 is the proper balance due and owing to the Complainant from the Respondent and that notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. 5. The instant record demonstrated that the owner of the construction project has accepted the Complainant’s work and moreover, has paid the Respondent, except for retention and extras, for the Complainant’s role in the construction project at issue herein. 6. Credible testimony and evidence established that the Respondent knowingly utilized the funds paid for the Complainant’s completed construction work to fund other construction projects leaving the Complainant unpaid for the Complainant’s labor and materials utilized on the construction project at issue. 7. The Respondent ‘s failure to pay the aforementioned sum to the 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 provision of the state’s contracting Laws.

CONCLUSIONS OF LAW

1. Credible testimony and evidence supported findings that establish that the Respondent violated the provisions of A.R.S. §32-1154A (11) (Failure to pay monies when due).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s License No. 172410, Class A-, be revoked on the effective date of this Order. It is further recommended that if Respondent provides written proof, acceptable to the Registrar of Contractors, that the Respondent has paid the sum of $60,850.00 to the Complainant 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 A- License shall be placed on disciplinary probation for a period of ninety (90) days.

Done this day, June 28, 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