ALJDEC decisions subject to certification as final

2015A-794-ROC · Registrar of Contractors · 2016-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2016 APPEARANCES: Ana L. Castro, Complainant; Mark Bockel, Attorney for Respondent; Juanita and Juan Arriaga, Respondent’s representatives; Steve Philpot, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. The Notice of Hearing in this matter advised the parties as follows: YOU ARE HEREBY NOTIFIED that a HEARING upon the charges made in the Citation and Complaint will be held by the Office of Administrative Hearings on January 6, 2015 at 400 W. Congress St. Ste. 212 Tucson, AZ 85701 at 3:00 pm before Administrative Law Judge Dorinda Lang.

Both parties are advised that this is an adversarial hearing before an administrative law judge and is conducted in similar manner as judicial proceedings. Your attendance is required and you must be prepared to produce relevant and material testimony and evidence in support of your position. Parties are entitled to be represented by an attorney, but an attorney is not required. Failure to attend the scheduled hearing is likely to result in an adverse ruling against you.

2. Having been so advised by the Notice of Hearing, both parties were represented at the time of the hearing: Complainant was represented by herself and Respondent was represented by an attorney. Their appearance at the hearing indicated that they had received the Notice of Hearing and had been able to understand it sufficiently to present themselves at the proper location at the proper time. 3. Before the start of the hearing, the parties informed the Administrative Law Judge that Complainant could not speak English. Complainant stated that she could not speak it very well. She also indicated that she had not requested an interpreter prior to the hearing, that she did not know what the hearing was about and that she was unable to proceed. 4. Although Complainant had not specifically requested a continuance, the Administrative Law Judge inquired about one and Respondent’s attorney objected. Respondent had incurred the time and expense necessary to appear at the appointed time and was prepared to proceed as directed by the Notice of Hearing. Complainant, on the other hand, had not prepared in any way to pursue the matter that she herself had initiated, even though the Notice of Hearing warned her that she “must be prepared.” 5. It is noted that the hearing was set to consider two issues that were not related to the work performed for Complainant and it is unlikely that Complainant would have obtained any benefit from prevailing even if she had prepared for the hearing. 6. The Administrative Law Judge declined to order a continuance and stated that the matter was dismissed. On further consideration, it is more appropriate to recommend that the Registrar dismiss the matter. CONCLUSIONS OF LAW 1. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. In this case, Complainant not only failed to request an interpreter but she failed to prepare for the hearing in any way. She admitted that she didn’t know what the hearing was about even though she had clearly received the Notice of Hearing and had understood it enough to appear at the hearing at the appropriate place and time. It appears very likely that if a continuance had been granted, Complainant would still not have prepared her case and would have only discovered at the hearing that she stood to gain nothing even if she prevailed. It would be extremely unfair to require Respondent to incur additional legal expenses to defend itself against a Complainant that hadn’t even bothered to understand her own appeal. Further, if the Registrar wishes to pursue the violations set for hearing, nothing prevents it from doing so under its own motion. 3. If Complainant had understood the issues at hearing and had been prepared to proceed, an interpreter would have been obtained for her. However, because Complainant did not understand the issues and had nothing to gain, it was deemed fruitless to proceed further. 4. Based on the above, it appeared appropriate to dismiss the matter because the Complainant did not appear at the hearing ready to proceed with the case in any way, and not even knowing what her own case was about. Complainant clearly was unprepared to meet her burden of proof, even though she was notified of her duty in the paragraph immediately following the information she followed in order to appear at the hearing. Although the Administrative Law Judge stated on the record that she was dismissing the matter, upon reconsideration, the Administrative Law Judge recommends that the Registrar dismiss the matter so as to conform to the more common practice. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this matter be dismissed. Done this day, January 7, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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