ALJDEC decisions subject to certification as final

07F-G1921-ROC · Registrar of Contractors · 2008-01-23

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2008 APPEARANCES: Complainant: Winifred L. Austin, corporate officer, appeared, pro per. Respondent: Cheryl Garner, corporate officer and qualifying party, appeared and was represented by counsel, Hank Pearson. 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 made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated December 18, 2007. 2. Prior to proceeding on the record, the parties engaged in settlement discussions which proved unsuccessful. 3. At the time the hearing was convened but before the presentation of any testimony or other evidence, Winifred L. Austin (“Austin”), corporate officer, on behalf of the Complainant, made a oral motions to continue the hearing to allow Complainant to (1) review documentation presented to him during settlement discussions and/or (2) to produce additional documentation which he had left at home.[1] Upon this tribunal’s denial of said motions, Complainant advised the Administrative Law Judge that Complainant did not wish to proceed with and would be presenting no evidence at the hearing in support of the allegations set forth in the instant complaint. 4. Complainant was advised by the Administrative Law Judge that its failure to present any evidence in support of its claims against Respondent would result in a recommended decision and order of dismissal for default in this matter due to Complainant’s failure to prosecute the case. 5. Thereafter, Complainant presented no evidence in support of the allegations against Respondent set forth in its complaint. 6. Given Complainant’s failure to present any evidence in support of the allegations set forth in its complaint, Respondent’s counsel moved to dismiss the complaint.

CONCLUSIONS OF LAW 1. Complainant, by not submitting any testimony or other evidence at the hearing in support of its complaint against Respondent, failed to sustain the required burden of proving the charges set forth in its complaint by a preponderance of reliable, substantial and probative evidence. Consequently, the record does not support any finding that Respondent has violated the provisions of A.R.S. §32-1154A, as charged in the instant complaint. … …

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. G07-1921 be dismissed.[2] Done this day, January 23, 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] Complainant made such oral motion during the parties’ settlement discussions. At that time, the Administrative Law Judge advised Mr. Austin that because such motions were untimely and not founded on good cause they would be denied when made on the record. [2] 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 in this matter will be forty (40) days from the date of that certification.

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