ALJDEC decisions subject to certification as final

2012A-1060-ROC · Registrar of Contractors · 2012-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2012, at 1:00 p.m. APPEARANCES: Complainants Dorothy Day and Charles Day appeared on their own behalf; Respondent Foresight Roofing LLC DBA: Countrywide Shingle did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 42.265407-D for dual roofing to Foresight Roofing LLC doing business as (“dba”) Countrywide Shingle (“Respondent” or “Countrywide Shingle”). Respondent’s address of record is 1285 South Idaho Road, Apache Junction, AZ 85119-6422. The Registrar received a complaint from Dorothy Day (“Complainant”) against Respondent regarding its failure to perform its contract to install a new roof on her house at 8132 West Meadowbrook Avenue, Phoenix, Arizona. According to the complaint, Complainant paid Respondent $6,082.43 for the work. The Registrar issued a Citation and Complaint charging Respondent with violating A.R.S. § 32-1154(A)(1). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. The address on Respondent’s written answer was 2153 East Cedar Street, #5, Tempe, Arizona 85281. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on July 19, 2012, at 1:00 p.m. at the OAH. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record and at the address on its written answer. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on July 19, 2012. The administrative law judge amended the caption to add Complainant’s son, Charles Day, as a party Complainant because he lives in the house at which Respondent contracted to perform the work and negotiated with Respondent’s employees for the contract. Complainants submitted two exhibits. Mrs. Day and Mr. Day both testified.

On the day before the scheduled hearing, Respondent’s qualifying party and member, Clinton Shawn Hyman, informed staff at the OAH that Respondent would not appear at the duly noticed hearing. Although the start of the hearing was delayed fifteen minutes, Respondent did not appear, through an authorized member, employee, or attorney. Respondent did not present any evidence to defend its license. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that as of July 27, 2012, Respondent’s license had been revoked since February 6, 2012, three complaints had been closed as resolved/settled/withdrawn, six complaints had resulted in discipline against Respondent’s license, and twenty complaints were pending against the license. / / / / / / / / Hearing Evidence The roof on Complainants’ house was damaged in a hailstorm. Complainants authorized Respondent to approach their homeowner’s insurer about making a claim to repair the damage. Complainants’ homeowner’s insurer subsequently issued a payment to Mrs. Day on her claim. On or about July 30, 2011, Mrs. Day and Respondent’s representative signed a contract for Respondent to remove and replace the roof on the house on Meadowbrook Avenue for a total cost of $8,332.93, with $6,082.43 due for Respondent to start the project. The name, “Countrywide Shingle,” and Respondent’s license number were printed at the top of the July 30, 2011 contract. On or about July 30, 2011, Mrs. Day issued a personal check made payable to Respondent in the amount of $6,082.43. Respondent cashed the check. Respondent never started work on its contract to replace the roof on Complainants’ house. As of the date of the hearing, Respondent had not performed any work or reimbursed any money to Complainants. CONCLUSIONS OF LAW The revoked status of Respondent’s license does not deprive Complainants of their right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainants’ complaint.[2] This matter lies within the Registrar’s jurisdiction.[3] The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and it appears that Respondent received actual notice of the hearing.[4] Complainants bear the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Complainants established that Respondent violated A.R.S. § 32-1154(A)(1) by abandoning its contract to replace the roof on Complainants’ house.[7] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar revoke Respondent Foresight Roofing LLC dba Countrywide Shingle’s License No. K- 42.265407-D. 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 forty days from the date of that certification. Done this day, July 27, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge amended the caption to add Dorothy Day’s son, Charles Day, as a party Complainant because he resides at the property where Respondent performed the work and negotiated with Respondent’s representative for the work to be performed.

[2] See A.R.S. § 32-1154(C). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [3] See A.R.S. §§ 32-1151 to 32-1169. [4] See A.R.S. §§ 41-1092.04 and 41-1092.05(D). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

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