ALJDEC

00F-990027-BFS · Department of Building and Fire Safety · 1999-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 28, 1999 at 9:00 a.m. APPEARANCES: Complainants did not appear; Cavco Industries, L.L.C., appeared through its employees, Mike Edwards and Steve Rienert; Discount Manufactured Homes did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Based upon the entire record in the matter, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Advance notice of a hearing scheduled to begin at 9:00 a.m. on September 28, 1999 was duly mailed to all three parties on August 24, 1999. Although the beginning of the hearing was delayed twenty minutes to allow Complainants additional travel time, they neither appeared, personally or through an authorized representative, contacted the Office of Administrative Hearings to request a continuance, nor presented any evidence at the hearing to support the specific items that had been verified against either respondent. CONCLUSIONS OF LAW In this administrative proceeding, Complainants bear the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). Complainants, by the failing to appear or prosecute their complaint at the hearing, failed to sustain their burden to prove the allegations in the Verified Complaint by a preponderance of relevant, substantial and probative evidence. Consequently, the record does not support a conclusion that either Respondent violated the provisions of A.R.S. § 41-2186.1, .12, .19, and .20 charged in the Citation and Complaint in this matter. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Director of the Department of Building and Fire Safety dismiss the Citation and Complaint against both Respondents in Case No. 99-0/027. Done this day, September 28, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Department of Building and Fire Safety N. Eric Borg, Director E. Virginia, Suite 100 Phoenix, AZ 85004 ATTN: Michelle M. Castañeda

By ___________________________

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

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