ALJDEC decisions subject to certification as final

08F-M0279-ROC · Registrar of Contractors · 2008-06-17

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 2008 at 9:00 a.m.

APPEARANCES: >The Complainant failed to appear. >The Respondent was represented by is attorney, Michael B. Brewer, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The instant hearing was duly scheduled on advance written notice duly sent to both parties. Although the start of the scheduled hearing was delayed for over twenty-five minutes to afford added time in which to make an appearance, the Complainant failed to appear through any individual member of the corporate entity or through any proper legal representative.

2. The case record reflects that very shortly prior to the date and time of the scheduled hearing, Complainant had filed a much-belated and ex parte motion or request for a continuance, which motion was denied by the tribunal. Both parties and counsel were expressly notified telephonically of the ruling on the motion.

3. Complainant, by its failure to attend the scheduled hearing, did not present any evidence at the hearing in support of the allegations set forth in the filed complaint in this administrative action.

4. Respondent was present through counsel and prepared to participate in the evidentiary hearing through the testimony of an individual witness who was also present. Respondent moved to dismiss the within Citation and Complaint based upon the default in appearance by Complainant. Such motion was unopposed.

CONCLUSIONS OF LAW

1. 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, and a granting of Respondent’s motion to dismiss this matter appeared to be appropriate and fully warranted.

RECOMMENDED ORDER

In view of the foregoing, and in light of the lack of proper prosecution by Complainant, it is recommended that the Respondent’s motion to dismiss be granted and that the entire Citation and Complaint in Case Numbers M08-0279 and M08-0279W and be dismissed.

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 forty (40) days from the date of that certification.

Dated: June 18, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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