ALJDEC

02F-M0259-ROC · Registrar of Contractors · 2002-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2002 APPEARANCES: Complainant Rogoz Construction, LLC failed to appear. Michael Georgopapadakos appeared on behalf of Respondent J.A.C., Inc. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this matter is whether Respondent J.A.C., Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent J.A.C., Inc. (“JAC”) is the holder of a Class B-01 license (No. 113259) issued by the Registrar of Contractors (“ROC”). On August 6, 2001, Complainant Rogoz Construction, LLC (“Rogoz”) filed a complaint against JAC with the ROC regarding a construction project in Gilbert, Arizona for which JAC served as general contractor. Rogoz alleged “[n]o formal contract signed or agreed upon. Materials delivered to job site. No payment made and JAC will not release materials delivered. Agreement canceled”.

On November 27, 2001, the ROC issued a Citation and Complaint charging JAC with one violation of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury). On January 24, 2002, the ROC issued a Notice of Hearing setting this matter for hearing on April 9, 2002. At the date and time set for hearing, Rogoz failed to appear. The Administrative Law Judge delayed the start of the hearing for approximately fifteen (15) minutes so as to allow added time for appearance by or on behalf of Rogoz. When Rogoz failed to appear within that time, and further failed to inform the Office of Administrative Hearings of any reason that would establish good cause for its failure to appear, the Administrative Law Judge convened the hearing and proceeded in Rogoz’ absence. Because Rogoz failed to appear, Rogoz failed to present any evidence in support of its complaint. Although not obligated to do so, JAC elected to present evidence and argument in its own behalf. The Administrative Law Judge does not address that evidence or argument herein because it is unnecessary to do so. Rogoz, by its failure to appear, failed to sustain its burden to prove the allegations of its complaint. Therefore, the appropriate resolution of this matter is for the ROC to dismiss Rogoz’ complaint. CONCLUSIONS OF LAW In this proceeding, Rogoz bears the burden to prove, by a preponderance of the evidence, that JAC is subject to discipline for a violation of A.R.S. § 32-1154(A)(7) as charged by the ROC in its November 27, 2001 Citation and Complaint. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Because Rogoz failed to appear, Rogoz failed to present any evidence or legal argument in support of its complaint. In the absence of such evidence or legal argument, it is appropriate for the ROC to dismiss Rogoz’ complaint. Although JAC offered both factual and legal arguments in support of its position at hearing, the Administrative Law Judge does not address these contentions; it is unnecessary to do so given Rogoz’ failure to have sustained its burden of proof. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Citation issued in Case Number M02-0259, together with the Complaint upon which it is based, be dismissed.

Done this day, April 12, 2002.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ -----------------------

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