ALJDEC decisions subject to certification as final

06F-2544-ROC · Registrar of Contractors · 2007-02-06

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2007.

APPEARANCES: >The Complainant failed to appear. >The Respondent appeared through its President and qualifying party, Steven Diprosperi.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The instant hearing was duly scheduled on advance written notice duly sent to both parties. Although the start of the scheduled hearing was delayed for over thirty-five minutes to afford added time in which to make an appearance, the Complainant failed to appear either through any proper authorized employee or by an appropriate legal representative.

2. Very shortly prior to the time at which the hearing was to convene, the Office of Administrative Hearings received a telephone call from the wife of Nick G. Partain, who was and is Complainant’s principal operating officer, communicating information that her husband, Mr. Partain, was ill and purportedly unable to attend and participate in the scheduled hearing. At the very outset of the hearing, the Administrative Law Judge accepted a telephone call made to the tribunal by Nick Partain, Complainant’s President and qualifying party, so as to enable Complainant to orally present a formal Motion or Request for a Continuance. The entirety of the telephonic Motion or Request, as well as the opposition interposed by Respondent and the ruling by the Administrative Law Judge, was recorded and made part of the hearing record.

3. Oral argument in support of and in opposition to the Complainant’s belatedly submitted Motion or Request for a continuance was permitted and evaluated. Under all the circumstances, this tribunal determined that the granting of any continuance was not warranted, thereby effectively denying Complainant’s Motion or Request, although also expressing a willingness to grant a relatively short recess or delay in starting the hearing so as to allow reasonable travel time to the hearing site. Mr. Partain, after being notified that the hearing would proceed as scheduled, gave no indication that he would be willing or able to attend in a reasonably prompt time nor did he indicate that another corporate or legal representative would attend the proceedings on behalf of Complainant.

3. By its failure to appear and participate in the hearing, Complainant did not present any evidence at the hearing in support of the allegations set forth in the complaint herein.

4. Respondent’s authorized representative, who was present at the evidentiary hearing and fully prepared to participate in the proceedings, expressly moved that the instant administrative action be dismissed.

CONCLUSIONS OF LAW

1. Upon the failure of a party to properly appear at the scheduled hearing, the Administrative Law Judge may issue a default decision.

2. Complainant’s default in appearance at the hearing has resulted in its inability or failure to sustain the required burden of proving the charges set forth in the complaint by a preponderance of reliable, substantial and probative evidence. It is therefore concluded that the record does not support any finding that Respondent has violated any of the provisions of A.R.S. §32-1154(A), as charged in the instant Citation. Consequently, in accordance with Respondent’s motion, a dismissal of the filed complaint, together with the entire issued Citation, is appropriate and fully warranted

RECOMMENDED ORDER

In view of the foregoing, and in light of the lack of proper prosecution by Complainant, it is recommended that the motion by or on behalf of Respondent be granted and that the entire Citation and Complaint in Case Number 06-2544 be dismissed.

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 will be forty (40) days from the date of that certification.

Dated: February 7, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

____________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington Street (6th Floor) Phoenix, AZ 85007

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