ALJDEC

01F-2271-ROC · Registrar of Contractors · 2001-11-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19, 2001 APPEARANCES: Complainant : No representative appeared for Barclay Dean Construction. Respondent : James L. Csontos, Esq., Jennings, Haug & Cunningham, L.L.P., appeared for Boulder Construction Company. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ FINDINGS OF FACT 1. An evidentiary hearing was scheduled for 9:00 A.M., November 19, 2001 at the Office of Administrative Hearings Phoenix, Arizona. Although having been given notice as required by applicable law, Complainant Barclay Dean Construction failed to appear for the hearing.[1] Respondent’s representative was present and ready to defend. 2. As Complainant failed to appear and prosecute its claim, the record is devoid of evidence supporting the allegations contained within the Citation and Complaint issued by the Registrar of Contractors on July 30, 2001.

CONCLUSIONS OF LAW 1. 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 Complainant, is more probably correct on the issue(s) in dispute. Observing these standards, Complainant 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 acts and/or omissions asserted in the complaint. 2. The record is devoid of evidence indicative that Respondent has abandoned its contract with Complainant or has engaged in wrongful or fraudulent activity relevant that contract. RECOMMENDED ORDER Based upon the foregoing findings and conclusions, IT IS RECOMMENDED that complaint No. 01-2271 be dismissed. Set forth this 19th of November in the year 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater Att’n: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] According to Mr. Csontos, Respondent is represented by Washington state counsel, the representative having interacted with Mr. Csontos concerning several matters related to the issue(s) that induced the request that a hearing be scheduled. [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