ALJDEC

97F-2276-ROC · Registrar of Contractors · 1997-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 12, 1997 APPEARANCES: Complainant was represented by its attorney, Richard Cobb 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. Near the close of the business day immediately preceding the scheduled hearing date, Complainant requested a continuance of the scheduled hearing. The continuance was duly denied and the parties were notified via telephone of said denial. 2. Pursuant to written contract, Complainant was retained by Respondent to perform specified rough framing work on a new car dealership construction project wherein Respondent was acting in the capacity of general contractor. 3. Complainant completed all of the contracted work on or about August 17, 1996 and, in conjunction therewith, submitted a final billing to Respondent in the sum of $14,890.32 (Complainant had received progress payments during the course of the contract and thus, the final billing reflected only the remainder due and owing after receipt of several progress payments).

4. The uncontroverted evidence of record established that Respondent has failed to pay Complainant any portion of the sums claimed herein despite numerous and repeated demands over a prolonged period of time and, as such, said failure to pay constitutes a violation of the applicable charged section of the State’s Contracting laws. 5. By its default in appearance at the scheduled hearing, Respondent failed to present any evidence in defense or in mitigation of the charges presented herein. 6. The aforementioned sum due at the end of the contracted work may properly serve as a reasonable condition to be imposed in the instant order as a method to allow Respondent to avoid the imposition of otherwise appropriate disciplinary sanctions. In the event that Complainant believes that it may be entitled to any interest on the unpaid balance of the contract, over and above the sum set forth as a condition in the instant order, then such additional claim may be brought before a civil court of competent jurisdiction. 7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed numerous prior complaints that had gone into the hearing process, including at least two prior Orders of the Registrar finding violations of the State’s contracting laws. In addition, it is important to note that the record of the Registrar of Contractors further reveals numerous and excessive complaints filed against Respondent alleging “non-payment” (same type of issue as presented in the instant matter). Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7), and (11). 2. There was no evidence of record presented to support any finding that Respondent violated the provisions of A.R.S. §32-1154A (23).

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 $14,890.32 to Complainant 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-01 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 in addition to the required surety bond or cash deposit 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 12, 1997.

______________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________

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