ALJDEC decisions subject to certification as final

2010A-3282676-ROC · Registrar of Contractors · 2010-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Rene Alcoverde. 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 KB-02 (No. 173656) License issued by the Registrar of Contractors. 2. This is a residential matter where pursuant to a construction agreement the Respondent performed work as an exterior plastering subcontractor on a new residence being constructed at 12871 N. Rusty Iron Trail, Tucson Arizona wherein the Respondent was acting in the capacity of a general contractor. 3. Undisputed credible testimony and evidence established that the Complainant completed the specified exterior plastering work on the new residence, including all authorized extras and/or change orders. 4. Undisputed credible testimony and evidence established that the Complainant was to be paid the total sum of $53,500.00 for its completed exterior plastering work on the residence at issue. 5. Although the Complainant has received a caterpillar tractor as partial payment for $30,000.00 of the money due, there was no dispute that the Respondent has failed to pay the Complainant the remaining amount due for the Complainant’s completed exterior plastering work on the residence at issue. 6. Undisputed credible testimony and evidence established that the sum of $23,500.00 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 of $23,500.00 remains unpaid. 8. The Respondent ‘s failure to pay the aforementioned sum of $23,500.00 to the Complainant is not found to be in good faith. Therefore, 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. 9. Notice is taken of the Respondent’s prior good license record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Undisputed credible testimony and evidence supported findings that establish that the Respondent violated the charged provisions of A.R.S. §32-1154A (11) (Failure to pay monies in excess of seven hundred and fifty dollars when due).

RECOMMENDED ORDER

In view of the foregoing, it is recommended, on the effective date of the Registrar’s Order, that the Class KB-02 (No. 173656) License of the Respondent be revoked unless the Registrar of Contractors receives and accepts written proof that Respondent has paid the sum of $23,500.00 to the Complainant. It is further recommended that, if Respondent pays the above described sum of $23,500.00 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 this matter be closed. 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, July 20, 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