ALJDEC decisions subject to certification as final

10F-1219-ROC · Registrar of Contractors · 2010-03-26

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

|Lawrence Tinkey and Karen Tinkey, | | No. 10F-1219-ROC | | | | | |Complainants, | | | | | | | |-v- | | | | | |ADMINISTRATIVE | |License No. 09303, Class C-21 of | |LAW JUDGE | |Desert Foothills Gardens Nursery, | |DECISION | |Inc. (CORP), | |(Recommending Dismissal | | | |For Failure To Prosecute Complaint) | |Respondent. | | | | | | |

HEARING: March 26, 2010

APPEARANCES: No one appeared on behalf of Complainant; Respondent was represented by its President and Qualifying Party George Pingitore.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

The hearing in this matter was scheduled for 10:00 a.m. on March 26, 2010. As noted above, Complainant did not appear at the appointed time and place. Respondent was present and ready to defend. This tribunal waited until 10:15 a.m. to see if Complainant would appear, but Complainant did not. Because Complainant failed to appear and prosecute the claim, the record contains no evidence supporting the complaint. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[1] Further, the standard of proof is “preponderance of the evidence,” meaning evidence showing that a particular fact is “more probable than not.”[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Complainant has not met that burden. By failing to appear and present evidence, Complainant has failed to show violation of the statutes cited in the Citation and Complaint. Considering the foregoing, IT IS RECOMMENDED that complaint 10-1219 against Desert Foothills Gardens Nursery, Inc. 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 40 days from the date of that certification.

Done this 26th day of March 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Arizona Administrative Code (A.A.C.) R2-19-119(B). [2] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996); In the Matter of the Appeal in Maricopa County Juvenile Action No. J- 84984, 138 Ariz. 282, 283, 674 P.2d 836, 837 (1983).

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