ALJDEC decisions subject to certification as final

2011A-3654-ROC-rhg · Registrar of Contractors · 2012-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2012, at 8:00 a.m. APPEARANCES: U K Electric LLC (hereinafter “Complainant”) failed to appear. Haugebak Construction Company (hereinafter “Haugebak”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Limited Rehearing are made: FINDINGS OF FACT 1. Complainant failed to appear at the hearing. Haugebak failed to appear at the hearing. The tribunal waited 20 minutes beyond the scheduled start time, but no one appeared for Complainant or for Haugebak. 2. Haugebak is the holder of License No: B-1.102221-C issued by the Registrar of Contractors. 3. The Order Granting Request for Rehearing provides, in pertinent part, as follows: On February 14, 2012, Respondent submitted a timely Request for Rehearing/Request for Reconsideration in this matter. On or about March 5, 2012, Complainant submitted its written Response in objection thereto. On or about June 4, 2012, Complainant and Respondent jointly submitted a Notice of Settlement and Stipulation of Dismissal in this matter with the Registrar maintaining, among other things, that “Respondent has settled with Complainant” and requesting that “the pending matter be dismissed with no notation toward Respondent’s license.” On or about March 7, 2012, the assigned Administrative Law Judge issued a Recommended Order denying Respondent’s Request for Rehearing.

The Registrar rejects the Administrative Law Judge’s attached Recommended Order.

Instead, IT IS ORDERED that Respondent’s Request for Rehearing is GRANTED in accordance with A.A.C. R4-9-120(C)(5). The Rehearing shall be limited in scope to the duration of Respondent’s unconditional suspension, specifically whether the facts of this case merit the imposition of an unconditional suspension of Respondent’s license for a period of not less than one day, but not greater than fifteen days.

The Registrar’s January 13, 2012 Order also required Respondent to post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months in the amount of $10,000 and imposed a period of disciplinary probation of 365 days following the suspension of Respondent’s license. These disciplinary penalties are outside the scope of the Rehearing. IT IS FURTHER ORDERED that a Limited Rehearing be scheduled in the normal course of docketing in the Phoenix area. A Notice of Limited Rehearing will be issued in due course.

Justification: A review of the Registrar’s records reveals that Respondent’s License No. B-1.102221-C was issued in May 1994. To date, the instant Complaint has been the only complaint against Respondent’s license. Furthermore, the payment dispute between Complainant and Respondent has since been resolved. Thus, an unconditional suspension of Respondent’s license for thirty days is unnecessarily harsh. The Registrar maintains that an unconditional suspension of Respondent’s license for a duration of one to fifteen days, along with the requirement that Respondent post an additional surety bond or deposit and the imposition of a 365 day period of disciplinary probation following the suspension, are the appropriate sanctions in this matter.

4. Administrative notice is taken of Haugebak’s prior license record as reflected on the Registrar of Contractors’ public website on September 12, 2012. Such prior license record reflects that License No: B-1.102221- C issued to Haugebak is current and in good standing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The parties have resolved their financial dispute in this matter and the Registrar of Contractors has imposed disciplinary penalties in addition to any active license suspension that may be imposed in this matter. This Tribunal concludes that Haugebak’s prior disciplinary record with the Registrar of Contractors, as shown on the Registrar of Contractors’ public website on September 12, 2012, and the undisputed fact that the parties have resolved their financial dispute are matters in mitigation for any disciplinary active license suspension that may be imposed as a direct result of this case. RECOMMENDed order on limited rehearing In view of the foregoing, it is recommended that License No: B- 1.102221-C of Haugebak be unconditionally suspended for a period of five days in addition to the requirements set forth in the Registrar’s January 13, 2012 Order that Respondent post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months in the amount of $10,000 and the imposition of a period of disciplinary probation of 365 days following the suspension of Respondent’s license. In the event of certification of this 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 the certification.

Done this day, September 12, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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