ALJDEC decisions subject to certification as final

2010A-100887240-ROC · Registrar of Contractors · 2010-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2010 at 8:00 a.m. APPEARANCES: No party appeared. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On June 30, 1994, the Registrar of Contractors (“the Registrar”) issued License Nos. ROC103029, Class B-5 for residential general swimming pool contracting and ROC103039, Class A-9 for commercial swimming pools to Respondent Rex Wolterman dba Mohave County Pools and Spas, a sole proprietorship (“Mr. Wolterman”). On May 18, 2005, the Registrar issued License No. ROC206536, Class B-5 for residential general swimming pool contracting to Respondent Colorado River Pools and Spas, Inc., a corporation (“Colorado River Pools”). Mr. Wolterman is Colorado River Pools’ qualifying party and an officer. On December 9, 2009, the Registrar received complaints from Complainant Bryan Cogan against Respondents’ licenses, which alleged that Mr. Wolterman had failed to comply with the settlement agreement in Mohave County Superior Court Case No. CV 2008-7087 by failing to pay Complainant and his wife $37,000.00 of the stipulated amount of $42,000.00. Complainant on the complaints provided his address as 2703 E. Blue Spruce Ln., Gilbert, AZ 85298-3423. The Registrar referred the complaints to Respondents for their immediate attention. The Registrar subsequently received Complainant’s requests that citations be issued against Respondents’ license. The Registrar consolidated the three complaints for hearing and, on March 3, 2010, issued Citations and Complaints against Respondents’ licenses, charging violation of A.R.S. § 32-1154(A)(11).[1] On March 12, 2010, Mr. Wolterman, on behalf of Respondents, filed written answers to the Citations and Complaints denying any statutory violation and affirmatively alleging that the complaints were untimely because they had been filed more than two years after Mr. Wolterman had purchased Colorado River Pools, which transaction had led to the litigation in Mohave County Superior Court Case No. CV 2008-7087. Mr. Wolterman also alleged that the complaints did not involve his sole proprietorship businesses and that, in any event, Colorado River Pools was no longer in business due to the economy and Complainant had repossessed buildings that had been part of the sale of Colorado River Pools. The Registrar referred the matters to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. On April 29, 2010, the Registrar issued Notices of Hearing, setting a videoconference hearing on June 8, 2010 at 8:00 a.m. at the Registrar’s Lake Havasu office. The Registrar mailed copies of the Notices of Hearing to Complainant at 2703 E. Blue Spruce Ln., Gilbert, AZ 85298-3423 and to Respondents at their addresses of record. Although the Administrative Law Judge delayed the beginning of the hearing thirty minutes to allow the parties additional travel time, neither Complainant nor Respondents appeared or contacted the Office of Administrative Hearings or the Registrar to request that the time for the hearing be further delayed. Complainant did not present any evidence to prosecute his complaints against Respondents. CONCLUSIONS OF LAW These disputes lie within the Registrar’s jurisdiction to resolve.[2] The Notices of Hearing that the Registrar mailed to Complainant at the address he provided on his complaint was reasonable. Complainant is deemed to have received the Notices of Hearing.[3] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[4] Complainant’s failures to appear at the duly noticed hearing or to offer any evidence to establish his claims preclude any finding of any statutory violation against Respondents. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order, the Registrar dismiss Case No. 2010-885865 against Respondent Colorado River Pools and Spas Inc.’s License no. ROC206536, Class B-5, and Case Nos. 2010-[number redacted] and 2010-[number redacted] against Respondent Rex Alan Wolterman dba Mohave County Pools and Spas’ License Nos. ROC103029, Class B-5 and ROC103039, Class A-9. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, June 8, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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