ALJDEC decisions subject to certification as final

08F-H0229-ROC · Registrar of Contractors · 2009-04-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2009 APPEARANCES: Complainant: Complainant failed to appear either by authorized representative or counsel. Respondent: Respondent appeared telephonically by and through counsel, Kenneth L. Gregory. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ A hearing convened via videoconference to determine whether disciplinary sanctions should be imposed against Respondent’s Class KB-01 License No. 186428 as alleged by Complainant in its December 10, 2007 Complaint and the Registrar of Contractors’ August 12, 2008 Citation and Complaint. 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 via videoconference at the time, date and place set forth in this tribunal’s January 13, 2009 Order Granting Continuance. Although the start of the scheduled hearing was delayed over fifteen (15) minutes to afford time in which to make an appearance, Complainant did not appear either through an authorized representative or counsel. 2. As is evident by its non-appearance, Complainant presented no evidence at the hearing in support of the allegations set forth in the Complaint. 3. Given Complainant’s non-appearance, Respondent’s counsel, Kenneth L. Gregory, moved to dismiss the Complaint for failure to prosecute.[1]

CONCLUSIONS OF LAW 1. Upon the failure of a party to appear at a hearing, the Administrative Law Judge may issue a default decision. A.A.C. Rule 2-19- 117 2. Complainant, by the aforementioned default in appearance at the hearing, failed to sustain the required burden of proving the charges set forth in the 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 Citation.

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. H08-0229 be dismissed.[2] Done this day, April 20, 2009.

_______________________ Brian E. Smith 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 ___________________________ ----------------------- [1] At approximately 8:20 a.m. on the date of the hearing, Mr. Gregory telephoned the Office of Administrative Hearings and orally moved to be allowed to appear telephonically which motion was granted by the undersigned. [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.

-----------------------

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