ALJDEC

01F-2433-ROC · Registrar of Contractors · 2001-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 28, 2001 APPEARANCES: Bob Kapci, LLC Member, on behalf of the Complainant Paul Wedra, President, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. This matter came on for hearing at the time, date and place set forth in the Notice of Hearing. 2. The parties were present and evidence was received on the record. 3. At the commencement of the proceedings, the parties were informed that although restitution could be awarded by the Registrar under certain circumstances, restitution is secondary to the Registrar’s regulatory function. In addition, the accuracy of any amounts claimed as restitution would have to be clearly established by the evidence. Absent such accuracy, the issue of damages by way of restitution is best determined in a civil proceeding. 4. As the evidence was presented, it became apparent that if a violation was proven, the amount of restitution was not readily ascertainable. The basis for the amounts claimed by the Complainant was subject to a good faith dispute (certain charges were shown not to be chargeable against the Respondent, some charges for materials had no supporting documentation and the Respondent was prepared to present a claim of not having been paid amounts owed by the Complainant.) The parties were informed that the Administrative Law Judge (ALJ) was making no final determination on the issue but that the evidence was going in the direction of making any amount claimed as restitution less certain rather than more certain. 5. The Complainant was leaving the state on an afternoon flight, and based on the uncertainty of obtaining an award by way of restitution, determined that it did not wish to continue with the administrative hearing for the purpose of establishing a violation and having a sanction imposed by the Registrar. The primary allegation by the Complainant concerned a wrongful act for failure to perform according to the terms of an agreement entered by the parties. The Complainant hired another contractor to finish electrical work. It is the asserted additional cost for the replacement contractor that the Complainant sought recovery. Poor workmanship was also charged in the Citation and Complaint but was of secondary concern to the Complainant. Conclusions of Law 1. For the reasons stated in the Findings of Fact, the Complainant decided to withdraw or otherwise abandon the complaint. The Respondent was not required to present a defense. 2. The withdrawal by the Complainant does not constitute a determination on the merits, of the issues raised in the complaint. Therefore, the Recommended Decision has no preclusive effect either as res adjudicata or collateral estoppel.

Recommended Order In view of the foregoing it is recommended that the Citation and Complaint upon which it is based, be Dismissed.

Done this day, August 28, 2001

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors 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