ALJDEC decisions subject to certification as final

2012A-4641-ROC · Registrar of Contractors · 2013-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 30, 2013

APPEARANCES: No one appeared on behalf of Complainant or Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

The hearing in this matter began on February 11, 2013, when the parties appeared and discussed the case with the Administrative Law Judge for almost an hour. No evidence was taken, but the parties agreed as to an amount that was owed in this no-pay case. Respondent was a subcontractor of the general contractor on the project in question, and had subcontracted work out to Complainant. The parties seemed to agree that Respondent did not have the capacity to pay and had not been paid by the general contractor for at least a portion of the work that Complainant performed. In addition, Complainant’s representatives stated clearly that they did not want Respondent to lose its license. The hearing was postponed so that the parties could explore alternative ways of causing the general contractor to pay Respondent, who could then pay Complainant. An Order Setting Date for Further Hearing was issued by mail on February 15, 2013, setting a further hearing date for May 30, 2013, and, at the request of the parties, changing the location of the hearing from Flagstaff to Phoenix. As noted, no one appeared for further hearing; neither was any filing made as to the status of this case. In this situation, the Administrative Law Judge assumes that the parties worked out a solution or that Complainant no longer wishes to pursue this matter. 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 Case No. 2012-4641 against Yellow Feather, LLC 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, May 30, 2013.

/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