ALJDEC

01F-C012072-BFS · Department of Building and Fire Safety · 2001-11-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2001 APPEARANCES: Complainants : Fred and Debbie Jones failed to appear at the hearing either in person or by authorized representative.[1] Respondent : Bob Baker, Qualifying Party, appeared for Discount Manufactured Homes, Inc. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ FINDINGS OF FACT 1. An evidentiary hearing was scheduled for 9:00 A.M., November 29, 2001 at the Office of Administrative Hearings Phoenix, Arizona. Although having been given notice as required by applicable law, Complainants Fred and Debbie Jones failed to appear for the hearing. Respondent’s representative was present and ready to defend. 2. As Complainants failed to appear and prosecute their claim, the record is devoid of evidence supporting Complainants’ allegations concerning Respondent’s workmanship. 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 Complainants, are more probably correct on the issue(s) in dispute. Observing these standards, Complainants have failed to carry their burden of demonstration, by a preponderance of the evidence, that Respondent has violated statute, regulation or general principle of law under the facts alleged. 2. The record is devoid of evidence indicative that Respondent’s workmanship on the manufactured home at issue fell below standards.

RECOMMENDED ORDER Based upon the foregoing findings and conclusions, IT IS RECOMMENDED that complaint No. 01-2/072 be dismissed. Set forth this 29th day 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:

Department of Building and Fire Safety N. Eric Borg, Director Att’n: Shawna Blank East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

----------------------- [1] The gentleman attempting to appear for the Joneses was denied the privilege under Rule 31, Rules of the Supreme Court. [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.)

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

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