ALJDEC decisions subject to certification as final

08F-3272-ROC · Registrar of Contractors · 2009-03-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 24, 2009 APPEARANCES: Complainant did not appear. Respondent appeared through Jason Sutphen, Qualifying Party and Member. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Based upon the entire record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT 1. Steadfast Construction, LLC (“Respondent”) is the holder of License No. 221558, a Class K-02 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Victor Luigi Ciummo dba V C Builders (“Complainant”) filed a written Complaint with the Registrar alleging statutory violations by Respondent. The Registrar designated the Complaint as Case No. 08- 3272.

3. In response to the Complaint, the Registrar issued a Citation and Complaint in Case No. 08-3272 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7) and (3) (namely A.A.C. R4-9- 108). 4. The Registrar forwarded Case No. 08-3272 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. The Registrar issued a Notice of Hearing in Case No. 08-3272 advising the parties of the time, date and location of the scheduled hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. The hearing was scheduled for March 24, 2009 at 9:00 a.m. 6. On March 23, 2009, on the eve of the hearing, Complainant delivered two letters to the Office of Administrative Hearings by way of facsimile. The first letter stated the Complainant would not appear at hearing and stated he wished to withdraw his complaint. The second letter expressed Complainant’s desire to vacate the hearing. 7. Neither letter was copied to Respondent. Therefore, Respondent had no opportunity to object and request a hearing on the merits. As no notice and opportunity to respond was provided to Respondent, and the hearing was scheduled to take place in less than 24 hours, the Administrative Law Judge did not rule on the Complainant’s motion to withdraw and motion to vacate. The hearing remained scheduled for 9:00 a.m. on March 24, 2009. 8. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of an authorized representative for Complainant. After the delay, the Administrative Law Judge conducted the hearing in Complainant’s absence. 9. During preliminary discussions prior to the hearing, Respondent’s representative, Jason Sutphen, stated he wished to proceed with the hearing in order to obtain a decision on the merits, rather than stipulate to Complainant’s request to withdraw his complaint and vacate the hearing. 10. By his default in appearance at the hearing, Complainant failed to present any evidence to support the Citation and Complaint.

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 its default in appearance at the hearing, Complainant failed to sustain its burden of proving the allegations of statutory violations by Respondent as cited in the Citation and Complaint in Case No. 08- 3272 issued by the Registrar.

RECOMMENDED ORDER The Citation and Complaint in Case No. 08-3272 shall be dismissed on the effective date of the Order entered in this 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 24, 2009

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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