ALJDEC decisions subject to certification as final

07F-M1225-ROC · Registrar of Contractors · 2008-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2008. APPEARANCES: John C. Malcolm did not appear. Elementhomes Construction, LLC was represented by its attorneys, Richard Cobb, Esq. and Joseph Glenn, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Elementhomes Construction, LLC (“Respondent”) is the holder of License No. 186209, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. John C. Malcolm (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. 3. In response to Complainant’s Complaint, the Registrar issued a Citation and Complaint in Case No. M07-1225 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (23) and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. M07-1225 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. The Registrar issued a Notice of Hearing in Case No. M07-1225 advising the parties of the time, date and location of the evidentiary hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. The commencement of scheduled hearing was delayed 15 minutes to allow for the late arrival of Complainant or an attorney authorized to represent him. The assigned Registrar’s inspector, Respondent’s counsel, and Respondent’s five witnesses were timely present. After the delay, the Administrative Law Judge conducted the hearing in Complainant’s absence. 7. By his default in appearance at the hearing, Complainant failed to present any evidence in support of his Complaint and the Citation and Complaint issued in Case No. M07-1225.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. By his default in appearance at the hearing, Complainant failed to sustain his burden of proof in this matter. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (7), (23) and (3) as cited in the Citation and Complaint issued by the Registrar in Case No. M07-1225.

RECOMMENDED ORDER

The Citation and Complaint in Case No. M07-1225 shall be dismissed on the effective date of the Order entered in that matter. 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 will be 40 days from the date of that certification.

Done this day, March 7, 2008

______________________________________ Brian Brendan Tully 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