ALJDEC

99F-F0111-ROC · Registrar of Contractors · 1999-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 1999 APPEARANCES: Complainant appeared through its qualifying party, Richard Farnsworth; Respondent appeared through its qualifying party, Donald James Felix. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT A hearing was commenced at the time and on the date duly noticed to the parties, both licensed contractors. The administrative law judge briefly explained to the parties the statutory violations charged in the Citation and Complaint, Complainant’s burden of proof to present evidence at the hearing to establish these statutory violations, and the relief that the administrative law judge generally may recommend to Registrar of Contractors to afford parties in administrative proceedings like this one.[1] After this explanation, Complainant requested on the record to withdraw its complaint against Respondent’s license because the only issue Complainant wished to have resolved at the hearing was a determination of the amount Complainant fairly owed to Respondent for the job giving rise to the complaint. The administrative law judge informed the parties that, in view of Complainant’s request, she would recommend to the Registrar that he dismiss the Citation and Complaint against Respondent’s license.[2] CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). In light of Complainant’s decision to withdraw the complaint, there is no evidence that Respondent violated any subsection of A.R.S. § 31-1154(A). RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss the Citation and Complaint in Case No. F99-0111 against Respondent Donald James Felix dba J D L Excavating and Trenching (Indiv), License No. 138739, Class K-02. Done this day, March 12, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________

----------------------- [1]Complainant did not receive these explanations from the Registrar’s inspector because a former employee made the complaint against Respondent on Complainant’s behalf. This former employee abused Complainant’s qualifying party’s trust and apparently did not inform him of all communications with the Registrar’s inspector or with Respondent.

[2] Complainant agreed to pay and Respondent agreed to accept $3,000 for the work at issue. If this settlement is not consummated, Respondent’s may file a civil action or make a complaint to the Registrar for nonpayment.

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