ALJDEC decisions subject to certification as final

2010A-24251943-ROC · Registrar of Contractors · 2011-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2011 APPEARANCES: Complainant failed to appear; Michael Fjeld, Managing Member and Qualifying Party appeared for Respondent. ROC Inspector Jim Dimond was present.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________ FINDINGS OF FACT 1. At the scheduled start time for the hearing, Respondent’s representative was present and ready to proceed. No one was present on behalf of Complainant, nor had anyone contacted the Office of Administrative Hearings stating that someone was on en route. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Complainant or an attorney representing Complainant. 2. Approximately 15 to 20 minutes after the scheduled start time, Ken Paul, who stated that he has done work for Complainant for several years, appeared as a representative for Complainant. He is not a licensed attorney and was not allowed to represent Complainant at the hearing. He requested that Complainant be allowed to appear by telephone, but that request was denied because no good cause was apparent.[1] 3. The day before the hearing, the Administrative Law Judge, upon reviewing the file, noticed a potential issue with representation of Complainant. A Minute Entry was issued and sent by electronic mail the afternoon before the hearing. The Minute Entry was sent to the only e-mail address noted under Complainant’s information on the complaint form. That Minute Entry informed Complainant and Mr. Paul that Complainant must appear in person and represent himself, or be represented by a licensed attorney. On the hearing day, Mr. Paul acknowledged receipt of the e-mailed Minute Entry. 4. The Administrative Law Judge noted on the record that the Notice of Hearing states that a parties’ attendance at the hearing is required and that parties can be represented by an attorney. It also states: “Failure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing informs the parties how to contact the Office of Administrative Hearings. 5. There is no record showing that Complainant contacted the Office of Administrative Hearings, either by telephone, e-mail, or through its website, to request a telephonic appearance. This was not done prior to the hearing or during the delay of the start of the hearing. Furthermore, there is no record showing why Complainant was not present for the hearing. 6. Complainant failed to appear at the hearing. CONCLUSIONS OF LAW By failing to appear at the hearing, Complainant did not meet the burden to present evidence in support of the complaint.[2] Therefore, the complaint should be dismissed. RECOMMENDED DECISION Based on the foregoing, it is recommended that this complaint 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 day, February 15, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] In addition, Mr. Paul can not make a motion on behalf of Complainant because he is not an appropriate representative. [2] Arizona Administrative Code (A.A.C.) R2-19-119.

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