ALJDEC

98F-2040-ROC · Registrar of Contractors · 1998-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 1998 APPEARANCES: Complainant appeared through its controller, George Johnson 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. Pursuant to contract, Respondent retained Complainant to install a new foam roof on a specified residential structure. The date of the contract was August 22, 1997. The contract price was for $2,100.00. 2. Complainant completed its work on the project on August 29, 1997 and, in conjunction therewith, submitted a billing to Respondent for the contract agreed price of $2,100.00. Respondent failed to pay on the invoice. Although Complainant mailed monthly statements of account to Respondent over the course of a four month period of time, in an attempt to secure payment on the contract, no payment was received by Complainant .

3. As a direct result of the aforementioned failure of Respondent to pay on the contract, Complainant filed the instant complaint with the Registrar of Contractors. Evidence of record established that subsequent to filing said complaint with the Registrar of Contractors, Respondent offered, and Complainant agreed to accept, partial payments on a regular basis until the contract sum was fully paid. In this regard, Respondent commenced making said partial payments, however, the last payment that was received by Complainant was on June 2, 1998, leaving an unpaid balance on the contract of $1,050.00. Complainant has not received any communication from Respondent indicating a reason why the partial payments have ceased. 4. The uncontroverted evidence of record established that Respondent has failed to pay the outstanding contract balance of $1,050.00 and that said failure not only constitutes a violation of the applicable charged section of the State’s Contracting laws regarding the requirement to pay a contractor for materials and services rendered on a construction project but also a wrongful act within the meaning 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 matters in defense or in mitigation of the charges presented herein. 6. 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 the absence of any such prior disciplinary orders on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW

1. Uncontroverted evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154A (7) and (11). 2. The instant record was devoid of any facts sufficient to support a finding of a violation of A.R.S. §32-1154A (23). RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $1,050.00 to Complainant. It is further recommended that if Respondent pays or tenders the above-described sum of money to Complainant on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on active suspension for a period of five (5) days, followed immediately by a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, 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 $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, September 10, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 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