ALJDEC decisions subject to certification as final

2019A-01094-NPC-ROC · Registrar of Contractors · 2019-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2019 APPEARANCES: Nicolas Callagy for Complainant; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On April 11, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. June 10, 2019 at the Office of Administrative Hearings. 2. The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and complaint. 3. No one appeared for Respondent, Brent Alan Wolterman, d.b.a. Lake Havasu Pools and Spas, at the scheduled hearing time, and the matter was convened in Respondent’s absence at about 1:15 p.m. 4. Complainant is Callagy Construction LLC. Nicholas Callagy is a member of the LLC. 5. Respondent holds License No. 311231 issued by ROC. 6. Respondent hired Complainant to conduct excavating work at three job-sites. 7. Respondent hired Complainant to do excavation work for a pool at 1100 Rolling Hills. Complainant completed the work and billed Respondent $2950.68. As of the hearing date, Respondent had not paid Complainant for this work. 8. Respondent hired Complainant to do excavation work for a pool at 3275 Palm Tree. Complainant completed the work and billed Respondent $3642.20 for this work. As of the hearing date, Respondent had not paid Complainant. 9. Respondent hired Complainant to do excavation work at 1020 Avenida Del Sol on November 29, 2018 and to do additional work at that site on December 3, 2018. Complainant completed the work and sent Respondent two bills for $249.61. As of the hearing date, Respondent had not paid Complainant for this work. 10. Mr. Callagy has been informed by others that Mr. Wolterman has moved out of the state. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, P.3d 892 (App. 2003). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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 ….” Ariz. Rev. Stat. § 32-1154(A)(10). 9. The preponderance of the evidence shows that Respondent owes Complainant $7092.10 for services rendered in connection with Respondent’s license. 10. The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10). RECOMMENDED ORDER IT IS ORDERED that Brent Alan Wolterman, d.b.a. Lake Havasu Pools and Spas’ License No. 311231 is suspended until the Registrar receives proof that Mr. Wolterman has paid to Callagy Construction LLC the $7092.10 for the services Callagy provided to Mr. Wolterman. 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 is forty days after the date of that certification.

Done this day, June 26, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826