ALJDEC decisions subject to certification as final

2011A-4126-ROC · Registrar of Contractors · 2011-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2011, at 8:15 a.m. APPEARANCES: Complainants Carlos and Debra Ruiz did not appear; Respondent Rex Alan Wolterman dba Mohave County Pools and Spas appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In June 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC103029, Class B-5 for residential general swimming pool contracting to Rex Alan Wolterman, doing business as (“dba”) Mohave County Pools and Spas (“Respondent”). 2. On July 19, 2011, the Registrar received a complaint against Respondent from Carlos and Debra Ruiz (“Complainants”). The mailing address that Complainants provided on the complaint form was 665 Armour Drive, Lake Havasu City, Arizona 86406. This was also the jobsite address. 3. The complaint was assigned to the Registrar’s inspector, Cliff Corlett. Inspector Corlett sent a letter to the parties informing them that Respondent’s license was revoked on June 30, 2011, and that the Registrar would close the complaint unless Complainants requested a hearing. 4. Complainants requested a hearing. Complainants did not provide a new address on the request for hearing. 5. On August 17, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(1), (2), and (3), namely A.A.C. R4-9-108. 6. Respondent filed a timely written answer to the Registrar’s Citation and Complaint, denying any violations and affirmatively alleging that on August 11, 2011, the Superior Court of Mohave County had re- affirmed the stay imposed in Case No. CV-2009-02259, Respondent’s appeal of the Registrar’s order of revocation in an unrelated case, that Respondent had posted a $20,000.00 bond for the appeal, and that Respondent had been informed that his license would be reinstated. 7. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 8. On September 16, 2011, the Registrar issued a Notice of Hearing, setting a hearing on November 9, 2011, at 8:15 a.m. at the Registrar’s office in Lake Havasu City. 9. The Registrar mailed a copy of the Notice of Hearing to Complainants at the address that they had provided on their complaint to the Registrar. 10. Respondent and Inspector Corlett appeared for the duly noticed video conference hearing. 11. Although the start of the hearing was delayed fifteen minutes to allow Complainants additional travel time, they did not request to appear telephonically, did not appear personally or through an attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Complainants did not present any evidence to prosecute their complaint to the Registrar against Respondent. 12. Respondent testified that Complainants filed a written notice of withdrawal of their complaint to the Registrar. Respondent testified that the complaint should not be closed as resolved, settled, or withdrawn, however, because Complainants only made the complaint after Respondent’s business competitors had told them that his license had been revoked. Respondent testified that there was nothing wrong with the job and that he had arranged for other appropriately licensed contractors to continue working on the job after his license was “unexpectedly suspended.” Respondent testified that after his license was reinstated, Complainants agreed to allow him to return to the jobsite to finish the job and paid him $35,000.00. 13. Inspector Corlett testified that when Respondent entered the contract with Complainants, his license was current and in good standing. Inspector Corlett testified that the complaint that led to Respondent’s appeal in Mohave Superior Court was closed and that on the date of the videoconference hearing, Respondent’s license was current and in good standing. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainants at the address that they provided on their complaint was reasonable and they are deemed to have received notice of the hearing.[1] 1. This matter lies within the Registrar’s jurisdiction.[2] 2. Complainants bear the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 3. Complainants, by failing to appear at the duly noticed hearing, have not borne their burden to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statutes. 4. Respondent established that Complainants’ complaint should be dismissed, rather than closed as resolved, settled, or withdrawn. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the complaint in Case No. 2011-4126 against Respondent Rex Alan Wolterman dba Mohave County Pools and Spas’ License No. B-5.103029-R be dismissed. 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. Done this day, November 23, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04 and 41-1092.05(D). [2] See 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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