ALJDEC

98F-2468-ROC · Registrar of Contractors · 1998-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 1998 APPEARANCES: Complainant: Shannon Dillman, its office manager Respondent: Louis Dickson, its vice president ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ The parties presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT

1. Pursuant to several contracts between the parties, between October 4, 1997 and December 24, 1997, Complainant rented to Respondent certain equipment for Respondent to use to perform a subcontract. Although Respondent has received progress payments from the general contractor since Respondent rented the equipment, it has made no payments to Complainant. Pursuant to Respondent’s request, however, the general contractor has paid Complainant a portion of the amount owing on Respondent’s account.

2. Respondent admits that the sum of $14,652.15 is the proper balance due and owing to Complainant from Respondent . Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid.

3. The record in this matter demonstrated that the general contractor of the project has accepted Respondent’s work on said project and, moreover, has paid Respondent periodic progress payments for its role in the construction work for which equipment was rented from Complainant. After receipt of the progress payments, Respondent made payments to at least some of its creditors, including the Internal Revenue Service pursuant to a garnishment proceeding that the IRS had instituted. Respondent ‘s failure to pay the aforementioned sum to Complainant is not found to be in good faith and, accordingly, under all of the facts and circumstances presented herein Respondent’s conduct is found to constitute a violation of the applicable charged provisions of the State’s Contracting Laws.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154(A)(11). 2. In mitigation, Respondent could not have used at least some of the progress payments it received from the general contractor to pay Complainant because the Internal Revenue Service had garnished Respondent’s account.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar of Contractors’ Order that the Class L-37 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $14,652.15 to Complainant. It is further recommended that if Respondent pays or tenders the above described sum of money on or before the effective date of the Registrar’s Order then the aforementioned indefinite license suspension shall not take place. Done this day, September 1, 1998.

_________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of September, 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