ALJDEC decisions subject to certification as final

09F-2448-ROC · Registrar of Contractors · 2009-09-02

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2009

APPEARANCES: Complainant was represented by Bradley Logan, Managing Member of Logan Enterprises, LLC, which entity is a Member of C2C, LLC; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging that Respondent abandoned a subcontracting agreement and, thus, harmed Complainant. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant agreed that the decision could be made on that record. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending revocation of the license. FINDINGS OF FACT 1. Respondent Engelhardt Electric, Inc. is the holder of a class L- specialty commercial contracting license (No. 212670) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform electrical work for commercial projects.[1] Respondent’s Qualifying Party is Erwin Engelhardt. 2. Complainant is the holder of a class B-02 small commercial contracting license allowing Complainant to act as a general contractor for small commercial projects. 3. In June 2008, Complainant hired Respondent as an electrical subcontractor for a commercial project. The evidence shows that Respondent did not have good workmanship and did not complete the contract. Complainant had to bring in another contractor to complete and correct Respondent’s work. 4. Although, Respondent submitted some evidence of restitutionary damages, the record is not clear enough to make a finding of an amount certain for those damages.[2] Therefore, no particular amount of restitution owed by Respondent to Complainant has been shown on this record. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden. 2. The evidence is sufficient to show that Respondent abandoned the job without legal excuse as cited in the Citation and Complaint. 3. A review of current ROC records shows that Respondent’s class L- license is current and active. Respondent has had the license for almost four years and has no disciplinary actions. 5. Respondent’s failure to appear and give an account of its actions is considered a serious breach of Respondent’s duties as a licensed contractor. Therefore, revocation is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that Class L-11 license 212670, held by Respondent Engelhardt Electric, Inc. be revoked.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this 2nd day of September 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copies mailed this ___ day of September 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] See, Arizona Revised Statutes § 32-1102 and Arizona Administrative Code R4-9-102 for a description of commercial license classifications and scope of work. [2] For example, the complaint notes that the full contract price was not paid. This would reduce restitutionary damages. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

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