ALJDEC

01-12616-AFR · Office of Alternative Fuel Recovery · 2001-07-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 13, 2001 APPEARANCES: Petitioner : James V. Lynch failed to appear at the hearing either in person or by legally authorized representative. Respondent : No representative appeared on behalf of the Office of Alternative Fuel Recovery. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

FINDINGS OF FACT The above-styled matter convened for hearing on July 13, 2001 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 James V. Lynch, Petitioner herein, from the Office of Alternative Fuel Recovery’s determination to deny Petitioner’s claim for reimbursement under Section 31 of SB 1004[1]. Although having been provided notice of the hearing in accordance with applicable law, Petitioner failed to appear. Petitioner, having failed to appear, did not present evidence in support of his appeal.

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.[2] Further, the standard of proof is that of the “preponderance of the evidence”.[3] 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.”[4] 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 Petitioner, is more probably correct on the issue(s) in dispute. Observing these standards, Petitioner, by his failure to appear and prosecute his claim, has failed to carry his burden of demonstration, by a preponderance of the evidence, that Respondent has violated statute, regulation or general principle of law by its denial of his claim for the reason stated. Consequently, the record does not contain a finding in support of the Appeal.

RECOMMENDED ORDER IT IS RECOMMENDED that the Director of the Arizona Department of Administration dismiss this matter upon Petitioner’s default. Set forth this 13th day of July in the year 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

----------------------- [1] SB 1004 ( 16, amending A.R.S. ( 43-1086(E), 2000 Ariz. Laws, 7th S.S., Ch. 1. [2] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [3] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [4] 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.)

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