ALJDEC

99A-C220-DEQ · Department of Environmental Quality · 1999-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 1999 APPEARANCES: Assistant Attorney General Nancy Stone Jamison appeared on behalf of the Arizona Department of Environmental Quality. Appellant Curt Ellingford failed to appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

This matter came on for a regularly scheduled hearing on Tuesday, December 14, 1999 at 9:00 a.m. The Administrative Law Judge notes for the record that the start of the scheduled hearing was delayed for approximately fifteen minutes so as to allow added time for appearance by or on behalf of Appellant Curt Ellingford. Mr. Ellingford failed to appear, and further failed to inform the Office of Administrative Hearings of any reason which would establish good cause for failing to appear. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Appellant Curt Ellingford appealed an assessment imposed against him by the Arizona Department of Environmental Quality (the “Department”) for a monitoring assistance sampling fee. On October 26, 1999, the Department issued a notice of hearing setting this matter for hearing on December 14, 1999 at 9:00 a.m. at the Office of Administrative Hearings in Phoenix, Arizona. The Department sent a copy of the notice of hearing to Mr. Ellingford by certified mail. On December 10, 1999, the Department, through counsel, filed a “Notice of Resolution and Request to Vacate Hearing” with the Office of Administrative Hearings. The Department requested that the hearing be vacated because it had determined Mr. Ellingford was not liable for the fee assessment which formed the basis for his appeal. The Department stated it had given notice to Mr. Ellingford of its decision by letter dated December 1, 1999. On December 13, 1999, the Administrative Law Judge denied the Department’s request to vacate on the basis that Mr. Ellingford, as the appellant, was the only party who could properly request that the hearing be vacated. Mr. Ellingford did not appear for the hearing. The Administrative Law Judge infers from the record that Mr. Ellingford’s non-appearance is due to Mr. Ellingford’s receipt of the Department’s determination that Mr. Ellingford is not liable for the fee assessment which formed the basis for this appeal. CONCLUSIONS OF LAW The burden of proof was on Mr. Ellingford to establish, by a preponderance of the evidence, that the Department improperly assessed against him the monitoring assistance sampling fee. By his failure to appear at the hearing, Mr. Ellingford failed to sustain the required burden of proof. However, by virtue of the Department’s determination that Mr. Ellingford is not liable for the monitoring assistance sampling fee assessed against him, the Administrative Law Judge finds the issue presented by this appeal to be moot. RECOMMENDED ORDER In view of the foregoing, it is recommended that the monitoring assistance sampling fee assessed against Mr. Ellingford be vacated and that Mr. Ellingford’s appeal be dismissed. Done this day, December 15, 1999.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Department of Environmental Quality Jacqueline E. Schafer, Director 3033 North Central Avenue ATTN: Lavonne Watkins Phoenix, AZ 85012

By ___________________________

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