ALJDEC

01F-2420-ROC-com · Registrar of Contractors · 2002-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2002 APPEARANCES: Steven Mark O’Clock for the Respondent, Complainant failed to appear ADMINISTRATIVE LAW JUDGE: Wendy S. Morton _____________________________________________________________________

FINDINGS OF FACT This matter arises out of a June 13, 2001 Citation and Complaint against Respondent Anozira Commercial Construction, LLC. By order dated October 18, 2001, the ROC dismissed the original complaint after both parties failed to appear at an October 3, 2001 hearing. On February 13, 2002, the ROC reopened the Complaint at the request of the Complainant after Complainant alleged a breach of a settlement agreement by Respondent. On February 27, 2002 the Registrar of Contractors issued a Notice of Hearing setting this matter for hearing on Monday, April 8, 2002 at 9:00 a.m. at the Office of Administrative Hearings in Phoenix, Arizona. The Registrar of Contractors sent a copy of the notice of hearing to both parties by certified mail. On Friday, April 5, 2002 at approximately 3:00 p.m., the Administrative Law Judge received an ex parte letter from Marty Wolff on behalf of Complainant by which Complainant requested that the hearing be postponed for thirty days in order for the parties to “get some things worked out before the hearing.” In the letter, Mr. Wolff acknowledges and in fact apologizes for the “late notice.” The Complainant’s request for a continuance was untimely filed and without good cause and therefore was denied on the date and time set for hearing. Mr. O’Clock, appearing on behalf of Respondent, indicated that he had not seen the letter and had not been advised of the request for a continuance. Neither Mr. Wolff nor anyone representing Complainant appeared for the hearing, nor did Complainant inform the Office of Administrative Hearings of any reason that would establish good cause for failing to appear. The Administrative Law Judge waited fifteen minutes at the start of the hearing to allow Complainant time to appear. When the requisite time had elapsed the case was called. No evidence was presented. CONCLUSIONS OF LAW The burden of proof was on Complainant Wolff Mechanical Inc. to establish, by a preponderance of the evidence, the violations alleged in the Citation and Complaint. Based on the aforementioned history of this case, it is further recommended that the matter be dismissed with prejudice. By its failure to appear at the hearing, Complainant failed to sustain the required burden of proof. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Citation issued in this matter, together with the entire complaint upon which it is based, be dismissed.

Done this day, April 23, 2002

______________________________________ Wendy S. Morton Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

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

By ___________________________

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