ALJDEC

97F-1854-ROC · Registrar of Contractors · 1997-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 1997 APPEARANCES: Complainants appeared through Co-Complainant, Virgilia Moran and Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. At the outset of the scheduled hearing, the caption in this matter was amended to add Virgilia Moran, Robert Moran’s wife, as Co- Complainant. 2. Respondent was retained by Complainants to build an addition onto the guest house on their property. Complainants allege certain deficiencies in the work performed by Respondent and incomplete work. In addition, Complainants claim an overpayment to Respondent. 3. Uncontroverted evidence of record established that subsequent to filing the instant complaint the parties reached an agreement of accord, wherein Respondent agreed to pay Complainants a total of $3,332.01 according to a specified payment plan. The payment of the aforementioned sum of money was to be in lieu of Respondent performing any required corrective work and to resolve the instant complaint. 4. Pursuant to the aforementioned agreement of accord, Respondent made several payments to Complainants totaling $1,800.00. However, Complainants have not received any payment from Respondent since April 25, 1997 and claim a balance due and owing on the agreement of $1,532.01. Evidence of record showed that the agreement of accord required Respondent to pay the full sum of $3,332.01 on or before April 30, 1997. Thus, Respondent is found to be in serious breach of the agreement of accord constituting a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. 5. Complainants have had the work in question repaired and completed by others and merely seek an order from the Registrar of Contractors that Respondent pay them the balance due on the agreement of accord. Under the facts and circumstances presented herein, it is reasonable to require Respondent to pay the balance due and owing on the agreement of accord as a condition to allow Respondent to avoid imposition of otherwise appropriate disciplinary penalties. 6. By its failure to appear for the instant hearing, Respondent failed to present any matters in defense or mitigation. 7. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since February 2, 1997. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays or tenders the sum of $1,532.01 to Complainants on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class B license shall be placed on active suspension for a period of l4 days followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. 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 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.

Done this day, November 3, 1997.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of October, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826