ALJDEC decisions subject to certification as final

05F-M1727-ROC-com · Registrar of Contractors · 2008-06-25

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 24, 2008 APPEARANCES: Complainant: Complainant failed to appear either personally or through any authorized representative or counsel. Respondent: Mark Rahorn, member and qualifying party, appeared and was represented by counsel, Greg Davis. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ A hearing was convened to determine whether disciplinary sanctions should be imposed against Respondent’s Class B License No. 166651 for failure to comply with the terms and conditions of the Registrar of Contractors’ Decision and Order issued January 16, 2007. Based on the record[1] in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are issued: FINDINGS OF FACT 1. The record indicates that the original hearing in this matter took place October 17, 2005, April 4, 2006 and October 2, 2006. As a result of that hearing, the undersigned issued a Decision and Order on December 26, 2006. By Order dated January 16, 2007, the Registrar adopted the Administrative Law Judge’s Recommended Order which was to become effective February 25, 2007 absent any request for rehearing. 2. On or about March 21, 2007, Respondent filed a Notice of Compliance wherein it asserted that “the corrective work outlined in findings of fact numbers 12, 14 and 15 have all been completed.” 3. The Registrar of Contractors (“ROC”) issued a Notice of Compliance on April 2, 2007. 4. On April 9, 2007, Complainant filed a correspondence with the ROC which alleged that Respondent’s corrective work was “not performed to professional workmanship standards.” 5. On June 28, 2007, Complainant filed a request for a compliance inspection with the Registrar of Contractors. 6. A compliance inspection was performed by Registrar of Contractors Inspector Jack Clark on July 2, 2007 who thereafter issued a Compliance Inspection Report. 7. An Order Setting Compliance Hearing was issued by the ROC August 8, 2007. 8. This matter convened for hearing at the time, date and place set forth in this tribunal’s April 8, 2008 Order Granting Third Continuance. 9. Although the start of the scheduled hearing was delayed over fifteen (15) minutes to afford time in which to make an appearance, Complainant did not appear either personally or through any authorized representative or counsel. 10. As is evident by his non-appearance, Complainant presented no evidence at the hearing in support of his allegations of non-compliance with the Registrar of Contractors’ January 16, 2007 Order. 11. Given Complainant’s non-appearance, counsel for Respondent moved to dismiss the complaint with prejudice. … …

CONCLUSIONS OF LAW 1. Upon the failure of a party to appear at a hearing, the Administrative Law Judge may issue a default decision. A.A.C. Rul3 9-22- 801 2. Complainant, by the aforementioned default in appearance at the hearing, failed to sustain the required burden of proving by a preponderance of reliable, substantial and probative evidence the charges set forth in the instant complaint as they pertain to the corrective work required to be performed by Respondent as set forth in this tribunal’s December 26, 2006 Decision and Order and adopted by the Registrar of Contractors’ January 15, 2007 Order. Consequently, the record does not support any finding that Respondent has violated any provision of A.R.S. §32-1154A as charged in the instant Citation.

RECOMMENDED ORDER In view of the foregoing, and in light of the lack of prosecution by Complainant, IT IS RECOMMENDED that the entire CITATION AND COMPLAINT in Case No. M05-1727 be dismissed.[2] Done this day, June 25, 2008.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ ----------------------- [1] The record consists of those documents found within the Registrar of Contractors’ file, the content of which the Administrative Law Judge took Administrative notice, the exhibits offered by the parties and admitted into evidence and the digital record of the proceedings under A.A.C. R2-19- 121. [2] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

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