ALJDEC decisions subject to certification as final

09F-2354-ROC · Registrar of Contractors · 2009-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2009. APPEARANCES: Brent Milner and Sarah Milner did not appear. Bloom Design and Landscape, L.L.C. was represented by its member and qualifying party, Steve Reichmuth. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Bloom Design and Landscape, L.L.C. (“Respondent”) is the holder of License No. 09-2354 issued by the Registrar of Contractors (“Registrar”). 2. Brent Milner and Sarah Milner (“Complainants”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. The Registrar designated the Complaint as Case No. 09-2354. 3. The Registrar issued a Citation and Complaint in Case No. 09-2354 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 4. The Registrar issued a Notice of Hearing in Case No. 09-2354 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. 5. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Complainants or an attorney authorized to represent them. After the delay, the Administrative Law Judge conducted the hearing in Complainants’ absence.[1] 6. By their failure to appear at the scheduled hearing, Complainants failed to present any evidence in support of their Complainant, as cited in the Citation and Complaint issued by the Registrar. 7. During the hearing, Respondent’s authorized representative avowed that the parties had not entered into a settlement agreement. Respondent and the Registrar’s assigned inspector, Ted Gerold, were prepared to present evidence at the hearing. 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), Complainants have 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 their default in appearing at the scheduled hearing, Complainants failed to sustain their burden of proving the allegations contained in their Complaint. Therefore, there is no evidence to support the allegation that Respondent violated the provisions of A.R.S. § 32- 1154(A) (7) and (3), as cited by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. 09-2354 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, August 12, 2009

______________________________________ Brian Brendan Tully 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] On August 11, 2009, a letter from Complainant Sarah Milner was filed by the Registrar with the Office of Administrative Hearings. The letter had not been sent by Ms. Milner to Respondent or the Office of Administrative Hearings. In the letter, Ms. Milner said that she could not attend the scheduled hearing “due to personal business.” She claimed to be withdrawing the complaint. However, Ms. Milner did not explain why Mr. Milner could not attend the hearing. Complainants were not excused from attending the hearing by the tribunal. The withdrawal is deemed untimely.

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

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