ALJDEC decisions subject to certification as final

07F-1846-ROC · Registrar of Contractors · 2008-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 26 December 2007 APPEARANCES: Complainant: None. Respondent: None. Others: Warren Duncan, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A).

FINDINGS OF FACT 1. The above-entitled case was called to hearing at 1330, 26 December 2007 at the Office of Administrative Hearings in Phoenix, Arizona, pursuant to a duly promulgated Notice of Hearing issued by the ROC to the parties on 19 November 2007, for the purpose of hearing Complainant’s allegations regarding Respondent. Although Respondent sent a facsimile transmission to the Office of Administrative Hearings (“OAH”) after the time set for hearing of this matter, indicating that Respondent had settled the matter with Complainant, such communication is insufficient to cancel the hearing and vacate the case from the OAH docket. No communication from the Complainant was received confirming the settlement, nor did the party requesting the hearing (the Complainant) withdraw its request for hearing, either of which action would have been sufficient to cancel the hearing and vacate the case. Finally, both Complainant and Respondent failed to appear and, consequently, no evidence was presented in support of either party’s case.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant, by the aforementioned default in appearance at the hearing, failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated any provision of ARS §32- 1154(A).

RECOMMENDED DECISION It is recommended that the ROC dismiss this case on the basis of Complainant’s default.

Done this day, January 11, 2008

______________________________________ Maurice McWhirter Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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