ALJDEC decisions subject to certification as final

07F-G0271W-ROC · Registrar of Contractors · 2007-05-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2007 APPEARANCES: Complainant : Earl Kupta, Homeowners Association President, appeared for the Fountain Shadows Homeowners’ Association.[1] Respondent : David Gaona, Attorney at Law, represented Swaine Asphalt Corp. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ 1. A Hearing was scheduled for 9:00 A.M. May 8, 2007 at the Office of Administrative Hearings in Phoenix, Arizona. Appearing for the Fountain Shadows Homeowners’ Association was Earl Kupta, HOA President. In light of Mr. Kupta’s appearance and questionable status to appear, Counsel for Respondent moved to have the matter dismissed for improper representation. The Administrative Law Judge notices the provisions of A.R.S. § 10-3821(A) in ruling on the motion.[2] Mr. Kupta did not present with written (specific) authorization from the Fountain Shadows Homeowners’ Association Board of Directors, as is required by A.R.S. § 10-3821(A), Rule 31 of the RULES OF THE SUPREME COURT,[3] and Registrar of Contractors written policy; each of which the Administrative Law Judge has accorded administrative notice.[4] Therefore, Fountain Shadows Homeowners’ Association was not represented at the Hearing. 2. As Complainant failed properly to appear and prosecute its claim,[5] the record is devoid of evidence supporting Complainant’s allegations that Respondent had violated the cited provisions of Title 32.

CONCLUSIONS OF LAW 1. The burden of persuasion generally at an administrative Hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[6] Further, the standard of proof is that of the “preponderance of the evidence”.[7] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[8] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Complainants, is more probably correct on the issue(s) in dispute. Observing these standards, Complainant Fountain Shadows Homeowners’ Association has failed to carry its burden of demonstration, by a preponderance of the evidence, that Respondent has violated statute, regulation or general principle of law, as alleged in the CITATION AND COMPLAINT. 2. The record fails to support a finding that Respondent has improperly performed under a contract with Complainant and/or has violated the prescriptions and proscriptions of Title 32 (A.R.S. § 32-1154(A)).

RECOMMENDED ORDER Based upon the foregoing findings and conclusions, IT IS RECOMMENDED that the Registrar of Contractors dismiss Complaint Nos. G07-0271 and G07- G0271W, Complainant having failed properly to appear at the scheduled Hearing to prosecute its claim(s).

Done this 8th day of May 2007.

______________________________________ Gary B. Strickland Administrative Law Judge Copy mailed this 8th day of May 2007 to:

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

Fountain Shadows Homeowners’ Association GAONA LAW FIRM c/o AMCOR Property Professionals, Inc. David F. Gaona, Esq. 16441 N. 91st St., Ste. 104 3101 N. Central Ave., Ste. 720 Scottsdale, AZ 85260 Phoenix, AZ 85012

By ___________________________ ----------------------- [1] The Complaint was filed in the name of the third-party property management company, AMCOR Property Professionals, Inc. Robin Thomas, an employee of the company, indicated that she had accompanied Mr. Kupta to the Hearing anticipating that Mr. Kupta would present the case, or else that the case for the homeowners’ association would be presented by the Registrar of Contractors. Under Rule 31, set out below, AMCOR Property Professionals, Inc. is not authorized to represent the Fountain Shadows Homeowners’ Association at an administrative Hearing.

[2] The statute, which governs the actions of nonprofit corporations in Arizona, provides :

A. Unless the articles of incorporation or bylaws provide otherwise, action required or permitted by chapters 24 through 40 of this title to be taken at a directors' meeting may be taken without a meeting if the action is taken by all of the directors. The action must be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes filed with the corporate records reflecting the action taken.

[3] The Rule provides:

Rule 31. Regulation of the Practice of Law.

(a) Supreme Court Jurisdiction Over the Practice of Law.

1. Jurisdiction. Any person or entity engaged in the practice of law or unauthorized practice of law in this state, as defined by these rules, is subject to this court's jurisdiction.

2. Definitions.

A. "Practice of law" means providing legal advice or services to or for another by: . . .

(3) Representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitration and mediation;

. . .

B. "Unauthorized practice of law" includes but is not limited to:

(1) Engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 33(d);

. . .

(b) Authority to Practice. Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar.

. . .

(d) Exemptions. Notwithstanding the provisions of section (b) but subject to the limitations of section (c) unless otherwise stated:

. . .

11. Unless otherwise specifically provided for in this rule, in proceedings before the Office of Administrative Hearings, a legal entity may be represented by a full-time officer, partner, member or manager of a limited liability company, or employee, provided that: the legal entity has specifically authorized such person to represent it in the particular matter; such representation is not the person's primary duty to the legal entity, but secondary or incidental to other duties relating to the management or operation of the legal entity; and the person is not receiving separate or additional compensation (other than reimbursement for costs) for such representation.

[4] See “INSTRUCTIONS FOR FILLING OUT COMPLAINT FORMS” before the Registrar of Contractors (found at http://www.rc.state.az.us/Acrobat/Inspect/RC-C- 099Web.pdf). The instructions include the following:

If filing on behalf of a Homeowners Association, YOU MUST include a Homeowners Association Form, which you can download a Sample Association form from our website or call us for additional instructions. (Emphasis in the original.)

The “–SAMPLE—Association Form” provides written authorization for Homeowners’ Association representation “in any and all proceedings Before the Arizona Registrar of Contractors.”

[5] Allegations were made that Swaine Asphalt Corp had violated the provisions of A.R.S. § 32-1154(A)(3), (7), and (23).

[6] See Ariz. Admin. Code R2-19-119(B).

[7] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (A).

[8] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. LIVERMORE, R. BARTELS & A. HAMEROFF, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

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