ALJDEC decisions subject to certification as final

2010A-308473958-ROC · Registrar of Contractors · 2010-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Ms. Yashica Turner. 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 C-21 (No. 263432) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant provided construction materials to the Respondent for a construction project wherein the Respondent was acting in the capacity of a general contractor. 3. There was no dispute that Respondent gave the Complainant a check for the full amount of the construction materials and that the Respondent then canceled payment on the check after receiving the construction materials. 4. Credible testimony and evidence established that the Respondent falsely stated that the Respondent had entered into a payment agreement with the Complainant when in fact no such agreement was ever made. 5. There was no dispute that the Respondent has failed to pay the Complainant for the provided construction materials. 6. Credible testimony and evidence established that the sum of $2,413.79 is the proper balance due and owing to the Complainant from the Respondent.

7. There was no dispute that notwithstanding repeated attempts and billings over a prolonged period of time said balance remains unpaid. 8. Credible testimony and evidence established that the Respondent acted in the capacity of a contractor under its Class C-21 License in a name other than as set forth upon the Respondent’s License. 9. The Respondent‘s failure to pay the aforementioned sum of $2,413.79 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 violations of the applicable charged provisions of the state’s contracting laws. 10. Notice is taken of the Respondent’s good prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. 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) and A.R.S. § 32-1154 (A) (15) (Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license). RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of this Order that the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $2,413.79 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 License be placed on one hundred and twenty (120) days of disciplinary probation. It is further recommended, in addition to the above provided penalties, if any, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that the 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 $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32- 1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation 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 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, December 15, 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