ALJDEC

97F-2570-ROC · Registrar of Contractors · 1998-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 1998 APPEARANCES: Marshall and Marshall Floors ( hereinafter referred to as “Marshall” appeared through its owner, John Marshall. The Registrar of Contractors was represented by Assistant Attorney General, Montgomery Lee. 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. The Registrar of Contractors originally issued a Decision and Order in this matter on July 1, 1997. Subsequent to issuance of said Decision and Order, Respondent filed a petition for rehearing which was duly denied by the Registrar of Contractors pursuant to an order issued on September 22, 1997.

2. Respondent appealed the aforementioned final order of the Registrar of Contractors to the Superior Court and said court ultimately issued an order remanding the matter back to the Registrar of Contractors. Upon receipt of the Superior Court Order, the Registrar issued a notice of rehearing (which did not contain any limitation on the issues to be decided at the rehearing).

3. Evidence of record established that Marshall was retained by Respondent to install vinyl flooring in new home construction wherein Respondent was acting in the capacity of the general contractor.

4. Marshall installed the vinyl flooring in two homes that were being built by Respondent. The work in question was completed in February 1997 and shortly after completing the work, Marshall tendered invoices to Respondent for the sums of $406.00 and 431.00.

5. Notwithstanding repeated attempts by Marshall to receive payment for these jobs, none was forthcoming. Ultimately Marshall filed the instant complaint with the Registrar of Contractors in April 1997.

6. Respondent’s continuing failure to pay Marshall the sums set forth herein constitutes not only a violation of the State’s Contracting laws regarding failure to pay for services rendered but also a wrongful act within the meaning of the charged section of the State’s Contracting laws. By its default in appearance at 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 June 18, 1998. 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 (11) and(7).

2. The instant record was devoid of any facts necessary to establish a finding of a violation of A.R.S. § 32-1154A (23).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Class B license of Respondent 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 total sum of $837.00 to Marshall 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 this Order. It is further recommended, if the alternative penalty is applicable and in addition to the above provided penalties, 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 $2,500.00, such bond or deposit 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, October 8, 1998

_________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By _______________________________

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