ALJDEC decisions subject to certification as final

06F-M1963-ROC · Registrar of Contractors · 2006-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2006 APPEARANCES: Neither Complainant N S T Professional Services nor Respondent Crescendo Design Build Develop LLC appeared at hearing ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi _____________________________________________________________________ Findings of Fact 1. On the basis of the allegation made in Complainant’s Complaint, namely failure to pay for services, using unlicensed contractors, failing to pay required taxes, violation of safety codes and guidelines, and accepting “kickbacks,” the Registrar of Contractors cited Respondent for violating A.R.S. § 32-1154(A)(2) (departure from or disregard of plans, specifications or building codes), (A)(5) (failure to pay taxes incurred in the operation of the licensed business), (A)(7) (commission of a wrongful or fraudulent act causing substantial injury), (A)(10) (aiding or abetting an unlicensed person to evade the applicable chapter provisions ), and (A)(11) (failure to pay monies in excess of seven hundred fifty dollars when due for materials). 2. Although having been given notice as required by applicable law, both Complainant and Respondent failed to appear for the hearing. On December 8, 2006, attorneys for the parties filed a joint motion to continue the hearing. On December 12, 2006, the Administrative Law Judge issued an Order Denying said motion as untimely. Also on December 12, 2006, the attorneys for the parties notified the Office of Administrative Hearings by telephone of their intention to file a motion to dismiss. No such motion has been received. 3. As Complainant failed to appear and prosecute its claim, the record is devoid of evidence supporting the Citation and Complaint. 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. A.A.C. R2- 19-119(B). Further, the standard of proof is that of the “preponderance of the evidence.” Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); see also A.A.C. R2-19-119(A). This standard is not met unless the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 Bankr. 648, 654 (Bankr. 9th Cir. 1994). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case Complainant, is more probably correct on the issues in dispute. 2. Observing the aforementioned standard, Complainant failed to meet its burden of proof as the record is devoid of evidence demonstrating that Respondent has violated either of the statutory provisions cited in the Citation and Complaint. RECOMMENDED ORDER Based upon the foregoing findings and conclusions, IT IS RECOMMENDED that Case No. M06-1963 be dismissed. Done this day, December 14, 2006

______________________________________ Marianne T. Bayardi Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

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

By ___________________________

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