ALJDEC decisions subject to certification as final

07F-1993-ROC · Registrar of Contractors · 2008-02-07

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2008 APPEARANCES: Complainant: Complainant failed to appear either personally or through any authorized representative or counsel. Respondent: Lynn Harrison, corporate officer and qualifying party, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are issued:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in this tribunal’s Order Re: Continued Hearing Date issued November 7, 2007. 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.[1] 2. As is evident by his non-appearance, Complainant presented no evidence at the hearing in support of the allegations set forth in the complaint.[2] 3. Given Complainant’s non-appearance, Respondent’s representative, Lynn Harrison, moved to dismiss the complaint.

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. Rule 9-22- 801 2. Complainant, by the aforementioned default in appearance at the hearing, failed to sustain the required burden of proving the charges set forth in the complaint by a preponderance of reliable, substantial and probative evidence. Consequently, the record does not support any finding that Respondent has violated any provisions 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. 07-1993 be dismissed. Done this day, February 7, 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] It must be noted that on January 28, 2008, Complainant filed with the Office of Administrative Hearings a correspondence which advised that he would not be appearing at the hearing due to his relocation to Florida. Annexed thereto were several documents which, from the content of the correspondence, Complainant intended this tribunal to consider as support for his case in his absence pursuant to A.A.C. R2-19-117. The untimely filed correspondence contained no indication that a copy had been provided Respondent. Being out of the office on pre-arranged vacation, the undersigned did not review the referenced correspondence until his return February 6, 2008. That day, this tribunal issued an Order Denying Motion to Consider Documents at Hearing based on the fact that such correspondence and documentation were filed untimely under A.A.C. R2-19-106(C) and no copy had been provided Respondent as required by A.A.C. R2-19-105(E). Due to the impending hearing, the undersigned ensured that both parties were provided copies of the Order via facsimile that day. [2] In the above-referenced correspondence, Complainant mistakenly relies on A.A.C. R2-19-117 to support his contention that the instant hearing could proceed without him and the annexed documentation be considered hereby in his absence. R2-19-117 specifically states that “[i]f a party fails to appear at a hearing, the administrative law judge may proceed with the presentation of the evidence of the appearing party, or vacate the hearing and return the matter to the agency for any further action. [Emphasis added.] Given such provision, Complainant’s documentation cannot be considered without his being present to offer it into evidence.

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