ALJDEC

02F-UL0024-ROC · Registrar of Contractors · 2001-12-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2001 APPEARANCES: Defendant : Jack Eugene Bittner appeared on his own behalf. State of Arizona : Terrie Zenoff, Assistant Attorney General, represented the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ FINDINGS OF FACT 1. On September 26, 2001, a civil citation was issued to Jack Eugene Bittner for violation of A.R.S (( 32-1164(A)(2) (engaging in contracting without a license) and 32-1165 (advertising for paid contracting work without a license), each a Class 1 misdemeanor under the statute. The citation assessed a civil penalty against Mr. Bittner in the amount of $2,000. ($1,000. for each offense). 2. Mr. Bittner has filed an appeal from the agency’s action. A hearing on the appeal convened on December 14, 2001 as scheduled. 3. At the outset of the hearing, the Registrar of Contractors, by and through counsel, moved to vacate the hearing and to dismiss the civil penalty citation against Mr. Bittner. 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.[1] Further, the standard of proof is that of the “preponderance of the evidence”.[2] 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.”[3] 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 Registrar of Contractors, is more probably correct on the issue(s) in dispute. 2. The Registrar has effectively withdrawn his right to present proof upon the allegations that have led to issuance of the citation herein by moving to vacate the hearing and to dismiss the charge(s).

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors enter an Order dismissing case number UL02-0024.

Done this day, December 14, 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, Director Att’n: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [2] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [3] 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