ALJDEC decisions subject to certification as final

07F-L0230-ROC · Registrar of Contractors · 2007-08-02

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2007 APPEARANCES: Complainant : No representative appeared. Respondent : No representative appeared. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

1. An evidentiary Videoconferencing Hearing[1] was scheduled for 1:15 P.M. August 2, 2007 at the Office of Administrative Hearings in Phoenix, Arizona. Although having been provided notice of the Hearing as required by applicable law,[2] Complainant Lander and Son Roofing, Inc. failed to appear.[3] Respondent likewise failed to appear.[4] . . . 2. As Complainant failed 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 Lander and Son Roofing, Inc. 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 its 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 No. L07-0230, Complainant having failed to appear at the scheduled Hearing to prosecute its claim(s).

Done this 2nd day of August 2007.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 2nd day of August 2007 to:

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

By ___________________________ ----------------------- [1] With the Administrative Law Judge situated in Phoenix and the parties scheduled to appear from the offices of the Registrar of Contractors in Lake Havasu City.

[2] The Registrar of Contractors’ June 14, 2007 NOTICE OF HEARING was forwarded to Lander and Son Roofing, Inc.’s address of record.

[3] The start of the Hearing was delayed for a period of twenty (20) minutes to enable the Lander and Son Roofing, Inc. representative to make a late appearance in the event that a more timely appearance had been inhibited by unforeseen circumstance.

[4] Complainant filed a MOTION TO CONTINUE on July 26, 2007. The motion was denied. Respondent filed a MOTION TO CONTINUE on the day of the Hearing. That motion also is denied. [5] Allegations were made that Allred Drywall had violated the provisions of A.R.S. § 32-1154(A)(1), (7), and (9).

[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