ALJDEC

99F-2002-ROC · Registrar of Contractors · 1999-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 1999 at 9:00 a.m. APPEARANCES: Complainant did not appear; Respondent appeared through its co-owner, Jon Darwin Austin. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Based upon the entire record in the matter, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Advance notice of a hearing scheduled to begin at 9:00 a.m. on July 23, 1999 was duly mailed to both parties on June 11, 1999. On June 21, 1999, Complainant filed a motion to vacate the scheduled hearing because she did not have enough money to hire a consultant to testify at the hearing, which she felt she needed to win her case. Through an oversight,[1] the Office of Administrative Hearings failed to rule on the motion. Complainant did not appear at the scheduled hearing. CONCLUSIONS OF LAW In this administrative proceeding, Complainant bore the burden of proof and must have established statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). Because Complainant bore the burden to show that Respondent’s workmanship fell below the industry minimum standards governing the floor installation trade, she is correct that it would have been difficult if not impossible for her to carry this burden absent additional expert testimony, since the record in this matter indicates that the Registrar’s inspector was of the opinion Respondent’s workmanship complied with applicable standards. Complainant, by electing not to prosecute her complaint, failed to sustain her burden to prove the charges alleged in the complaint by a preponderance of relevant, substantial and probative evidence. Consequently, the record does not support a conclusion that Respondent violated the provisions of A.R.S. §32-1154(A) charged in the Citation and Complaint in this matter. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors dismiss the Citation and Complaint in Case No. 99-2002. Done this day, July 23, 1999. ______________________________________ Diane Mihalsky Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] During this time, the Office of Administrative Hearings started hearing AHCCCS cases and five new administrative law judges joined OAH. OAH’s expansion unfortunately created some confusion and mis-assignment of files. The undersigned regrets and apologizes for any inconvenience or uncertainty that its oversight may have caused the parties or the Registrar of Contractors’ inspector Robert Dragoon, who was assigned to investigate this case. OAH has taken measures to prevent such oversights from occurring in the future.

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