ALJDEC

99F-2588-ROC · Registrar of Contractors · 1999-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 1999 APPEARANCES: Complainant appeared through its president, Ann Hardin 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, Complainant performed specified truck hauling work on Respondent’s construction projects. The work in question was performed by Complainant over the period of several months in 1998, commencing in July and ending in December 1998. Although Complainant has received payment for a significant portion of the work performed and has billed Respondent for the remaining work, a balance remains due and owing.

2. The uncontroverted evidence of record was sufficient to support a finding that the sum of $3,517.99 is the proper balance due and owing to Complainant from Respondent for the truck hauling work that Complainant performed from July 1998 through December 1998. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid.

3. It is important to note that further undisputed evidence of record demonstrated that Respondent repeatedly advised Complainant that payment would be made for the unpaid balance. At one point, Respondent tendered a partial payment to Complainant for the unpaid balance. However, when Complainant attempted to deposit said check, the bank advised that the check was not good, due to insufficient funds in the account. This incident is considered as a matter in aggravation for any consideration of appropriate disciplinary penalties to be imposed in this Order.

4. Respondent‘s failure to pay the aforementioned sums 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 not only constitute a violation of the charged provision of the State’s Contracting Laws regarding payment for services rendered on a construction project but also a wrongful act within the meaning of the applicable charged statute.

5. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

6. Complainant averred at the outset of the scheduled hearing that notwithstanding the fact that the outstanding balance at issue herein was not paid by Respondent, they continued to perform further work for Respondent and said further work has also not been paid. Complainant attempted to raise the issue of the further unpaid balances but said issue was disallowed, based on the fact that Respondent had no notice that Complainant would be claiming any unpaid balance greater than $3,517.99. To consider such additional sums, at this time, would have constituted a violation of Respondent’s basic due process rights to adequate and proper notice. Nevertheless, nothing in this ruling would serve to prevent Complainant from filing further Registrar of Contractors’ complaints against Respondent concerning any remaining unpaid billings.

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 prior complaints that had gone into the hearing process, resulting in disciplinary sanctions being imposed by the Registrar against Respondent’s Class A license. 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.

8. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been suspended by the Registrar since November 2, 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 comply with any condition in the instant Order to avoid a suspension of an already suspended license. . . . . . . CONCLUSIONS OF LAW

1. Undisputed evidence of record established that Respondent 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 A 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 $3,517.99 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 A license shall be placed on active suspension for a period of ten (l0) 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 alternative penalties, if applicable, 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 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, October 29, 1999

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826