ALJDEC decisions subject to certification as final

2012A-1862-ROC · Registrar of Contractors · 2012-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2012, at 8:00 a.m. APPEARANCES: Complainant Reese A. Collier, Jr. appeared on his 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, Arizona 85119-6422. The Registrar received a complaint from Reese A. Collier, Jr. (“Complainant”) against Respondent regarding its failure to perform its contract to replace the roof on his house at 2717 North 88th Lane, Phoenix, Arizona. According to the complaint, Complainant paid Respondent $3,728.17 for the work. The Registrar issued a Citation and Complaint charging Respondent with a possible violation of 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 August 16, 2012, at 8:00 a.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 August 16, 2012. Complainant testified. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed fifteen minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, 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 August 28, 2012, Respondent’s license had been revoked since February 6, 2012, four complaints had been closed as resolved/settled/withdrawn, nine complaints had resulted in discipline against Respondent’s license, and sixteen complaints were pending against the license. Hearing Evidence The roof on Complainant’s house was damaged in a hailstorm in October 2010. On or about April 11, 2011, Respondent’s salesman called Complainant and asked if it could negotiate with his homeowner’s insurer and repair the roof. On or about July 20, 2011, Complainant and Respondent’s representative signed a contract for Respondent to remove and replace the roof on the house on North 88th Lane for a total cost of $6,720.41, with $3,811.82 due for Respondent to start the project. The name, “Countrywide Shingle,” and Respondent’s license number were printed at the top of the July 20, 2011 contract. On or about July 20, 2011, Complainant issued a personal check made payable to Respondent in the amount of $3,728.17.[1] Respondent cashed the check. Complainant testified that over the next five months, Respondent’s employees repeatedly assured him that Respondent would perform the contract. Complainant testified that he requested a refund on December 20, 2011, and was told that it would take 30-35 days for Respondent to return his money. When Complainant next attempted to contact Respondent, its number had been disconnected and it was out of business. Respondent never started work on its contract to replace the roof on Complainant’s house. As of the date of the hearing, Respondent had not performed any work or reimbursed any money to Complainant. CONCLUSIONS OF LAW The revoked status of Respondent’s license does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s 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 Respondent is deemed to have received notice of the hearing.[4] Complainant bears 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] Complainant established that Respondent violated A.R.S. § 32-1154(A)(1) by abandoning its contract to replace the roof on Complainant’s 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, August 28, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The record does not explain why the amount of the check was slightly less than the amount that the July 20, 2011 contract required Complainant to pay for Respondent to begin the work. [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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