ALJDEC

01-12157-AFR · Office of Alternative Fuel Recovery · 2002-01-22

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2002 APPEARANCES: Appellant S.B. 1504, LTD. : No representative appeared.[1] State of Arizona, Office of Alternative Fuel Administration : John E. Lundin, Esq., and Winton Woods III, Esq., of the law firm Gallagher & Kennedy, P.A. appeared. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ FINDINGS OF FACT 1. The above-styled matter convened for hearing as scheduled on January 22, 2002 at 9:00 A.M. at the Office of Administrative Hearings in Phoenix, Arizona. The purpose for the hearing was to entertain the appeal of S.B. 1504, LTD. from alleged actions and/or omissions undertaken by the Arizona Office of Alternative Fuel Recovery (the Office) concerning Appellant’s reimbursement claim under the Arizona Alternative Fuel Recovery Act.[2] Although having been provided notice of the hearing by the Office in accordance with applicable law, Appellant failed to appear. Appellant, having failed to appear, did not present evidence in support of its appeal.[3] 2. Appellant ISTAR has filed a properly executed Stipulation to Dismiss wherein and whereby the company, and Ira Gentry individually, has indicated its agreement to dismiss its claim, with prejudice, each party bearing its respective costs. A copy of the Stipulation to Dismiss is attached hereto.

CONCLUSIONS OF LAW The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[4] Further, the standard of proof is that of the “preponderance of the evidence”.[5] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.”[6] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Appellant, is more probably correct on the issue(s) in dispute. Observing these standards, Appellant S.B. 1504, LTD. has failed to carry its burden of demonstration, by a preponderance of the evidence, that Respondent has violated statute, regulation or general principle of law by denying Appellant’s claim for reimbursement of a loss attributable to termination of the Alternative Fuel Recovery Program.[7]

RECOMMENDED DECISION IT IS RECOMMENDED that the Director of the Arizona Department of Administration dismiss this appeal, Appellant S.B. 1504, LTD. not having prosecuted its claim. It is further recommended that the Director dismiss the claim of ISTAR (Ira Gentry) upon its own motion duly filed.

Set forth this 22nd day of January in the year 2002.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

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

Department of Administration - Office of Alternative Fuel Recovery J. Elliott Hibbs, Director Att’n: Michael Murphy 1700 W. Washington, Suite 103 Phoenix, AZ 85007

By ___________________________

----------------------- [1] Mr. Randy Jenkins signed the register as intending to attend the hearing, but did not appear in the hearing room. [2] Laws 2000, Ch. 405 (S.B. 1504”). [3] The Administrative Law Judge had issued an Order on January 18, 2002 precluding Mr. Gentry from representing the interests of S.B. 1504, LTD. at the hearing, the Order based on considerations relating to the unauthorized practice of law and the exceptions thereto that are found at Rules of the Supreme Court, specifically, Rule 31(A)(4)(k). [4] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [5] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [6] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.) [7] S.B. 1004, ( 16, amending A.R.S. ( 43-1086(E).

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