ALJDEC

98F-M1192-ROC · Registrar of Contractors · 1998-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on October 14, 1998 pursuant to advance notice duly sent to both parties. The Complainant appeared through its qualifying party and corporate President, John F. Wommer, II. Although the start of the scheduled rehearing was delayed for more than 30 minutes to afford added time in which to make an appearance, the Respondent failed to appear through any employee or any proper legal representative. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Complainant’s uncontroverted evidence revealed that, pursuant to an advance agreement with Respondent, who was the selected specialty contractor on the Maricopa County Guadalupe Project, Complainant performed extensive jobsite work consisting of clean up and hauling of debris in June, 1997.

2. The applicable payment terms under the parties’ arrangement were based upon a previously quoted and accepted rate per ton of materials cleared and removed by Complainant. A final invoice in the amount of $69,004.70 presented by Complainant

in July, 1997 for its services that had been furnished on the project became due and payable no later than mid-August, 1997.

3. Credible testimonial and documentary evidence indicated that Respondent had received payment in full from the County in July, 1997. However, despite Complainant’s numerous and repeated communicated requests or demands for Respondent to remit proper payment against the outstanding invoice, and notwithstanding the ultimate belated transmittal of several partial payments against the total indebtedness, the sum of $21,804.20 was shown to have remained long past due, owing and unpaid.

4. On at least two occasions, if not more, Respondent has expressly admitted in writing that it properly owes Complainant the full balance of $21,804.20, also acknowledging its correctness. No payment of any amount has been made by Respondent since January, 1998 to further reduce the unpaid balance, and all subsequent demands for payment, including the filing of the instant complaint with the Registrar of Contractors in March, 1998, failed to produce any additional payments from Respondent.

5. The ongoing and prolonged course of non-responsive conduct shown to have been exhibited by Respondent, considered together with the breach of its construction-related agreement to pay the amounts due for services rendered by Complainant, especially after having received full payment from the project’s owner, is further found to constitute a wrongful act to the financial detriment of Complainant within the meaning of another provision of the State’s contracting laws charged in this case. In point of fact, Respondent’s failure to timely remit the unpaid balance due to Complainant resulted in the filing of several complaints against the Complainant’s license that were traceable to the adverse impact of Respondent’s arrearages upon Complainant’s cash flow needed to timely satisfy business obligations which had been incurred by Complainant during the performance of the agreed work for or on behalf of Respondent.

6. The testimony additionally indicated that Complainant had initiated a civil lawsuit against Respondent that culminated in the entry of a judgment by the Court in

favor of Complainant for a monetary amount somewhat in excess of the sum set forth in the within administrative complaint filed with the Registrar. No portion of said judgment, which has now become final, has been paid by Respondent.

7. By Respondent’s failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to this tribunal.

8. Notice is taken of the Registrar’s license records which reveal that, while this disciplinary action was pending, Respondent’s Class AE license was allowed to be canceled as of October 1, 1998,. The present canceled posture of such license must be considered by the Registrar of Contractors when formulating a proper Order in this administrative disciplinary action. Little or no motivation would exist for any holder or former holder of a contractor’s license to accomplish remedial measures, whether consisting of work or payment, in order to avoid the imposition of a suspension against an already-canceled license. Instead, the imposition of a provisional license revocation, conditioned upon the appropriate satisfaction of a proven obligation, would appear to be appropriate and fully warranted hereunder.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S. §32-1154A(7) and (11).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class AE license be revoked on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar).

It is further recommended that if Respondent pay or tenders the amount of $21,804.20 to Complainant on or before this Order’s effective date, then the above-provided license revocation shall not be imposed, but instead, the Class AE license of Respondent shall be deemed to have terminated in good standing.

Dated: October 16, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN: Joyce Armijo -----------------------

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