ALJDEC decisions subject to certification as final
2020A-00388-RFA-LS-ROC · Registrar of Contractors · 2022-08-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jeffrey Lynn Steele,
COMPLAINANT
v.
C & E Builders, LLC
License No. ROC 172404,
RESPONDENT
No. 2020A-00388-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 9, July 15, and August 19, 2022
APPEARANCES: Complainant Jeffrey Lynn Steele failed to appear; Christa Pizzolanti for Respondent; Scott Donald, Esq. for the Registrar of Contractors
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
Complainant Jeffry Lynn Steele filed a claim asserting that he anticipated receiving a payout of $4300 from the Registrar of Contractors (“ROC”) Residential Recovery Fund.
Respondent is C&E Builders, LLC.
On April 20, 2022, ROC issued a Notice of Appealable Agency Action setting the matter for hearing at the Office of Administrative Hearings on June 9, 2022.
Complainant did not file a disclosure statement as required by Ariz. Admin. Code section R4-9-118.
Complainant did not appear on June 9, 2022. Respondent was prepared to present evidence and ROC did present evidence, but the matter was not concluded on that date.
The matter was scheduled to be reconvened for further hearing on July 15, 2022.
On July 13, 2022, Respondent filed a motion to continue the further hearing. ROC filed a response showing that it had no objection. Complainant did not respond to Respondent’s motion and did not appear at the time of the scheduled further hearing. Respondent was present and prepared to present its evidence on July 15th. Although Complainant’s failure to appear could have been considered to be a default, in fairness to Complainant, the ALJ continued the matter.
The matter was rescheduled to be reconvened for further hearing on August 19, 2022. Complainant did not appear and the ALJ informed the parties that his opinion was that the matter should be dismissed. ROC objected arguing that there was no basis on which to dismiss the matter.
After hearing ROC’s position and that of the ALJ, Respondent requested that the matter be dismissed. The ALJ granted Respondent’s request.
Considering that Complainant failed to appear on three properly noticed hearing dates and that Complainant failed to file a disclosure statement, Complainant has waived any right to receive a payout from the recovery fund.
CONCLUSIONS OF LAW
Unless otherwise provided by law: the party asserting a claim, right, or entitlement has the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense; and the proponent of a motion shall establish the grounds to support the motion. Ariz. Admin. Code § R2-19-119(B).
Waiver is the relinquishment of a known right. Waiver may be inferred from conduct and is a question of fact to be determined by the finder of fact. Chaney Bldg. Co. v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 709 P.2d 904 (App. 1985).
ROC’s Notice of Hearing shows that the parties “must attend this hearing,” and that they “must be prepared to present evidence ... in support of [their] case.”
Ariz. Admin. Code section R2-19-117, “Failure of Party to Appear for Hearing,” shows that the ALJ may vacate a matter in which a party fails to appear. See also Ariz. Admin. Code § R2-19-115(B)(“ A party shall have all witnesses, documents and exhibits available on the date of the hearing.”).
The parties were required to prepare and serve disclosure statements prior to the hearing. Ariz. Admin. Code section R4-9-118.
Considering that Complainant failed to appear on three properly noticed hearing dates and that he failed to file the required disclosure statement, Complainant has waived any right to receive a payout from the recovery fund.
RECOMMENDED ORDER
IT IS ORDERED that Jeffrey Lynn Steele’s recovery fund claim is denied.
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.
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-137160-45720000Done this day, August 24, 2022.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary