ALJDEC decisions subject to certification as final

2012A-1910-ROC · Registrar of Contractors · 2012-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2012, at 1:00 p.m. APPEARANCES: Complainants Jessie and Jose Sanchez 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, Arizona 85119-6422. The Registrar received a complaint from Jessie and Jose Sanchez (“Complainants”) against Respondent regarding its failure to perform its contract to replace the roof on their house at 5625 West Cambridge, Phoenix, Arizona. 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 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 August 16, 2012. Complainants testified and submitted two exhibits. 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 Complainants’ house was damaged in a hailstorm in October 2010. Shortly thereafter, Respondent’s salesman contacted Complainants. Complainants authorized Respondent to negotiate with their homeowner’s insurer to repair the roof. Complainants’ homeowner’s insurer approved their claim. On or about February 21, 2011, Complainants’ homeowner’s insurer issued a check to Complainants in the amount of $4,994.81. On or about March 5, 2011, Complainants and Respondent’s representative signed a contract for Respondent to remove and replace the roof on the house on West Cambridge Avenue for a total cost of $7,399.46, with $4,994.81 due for Respondent to start the project. The name, “Countrywide Shingle,” and Respondent’s license number were printed at the top of the March 5, 2011 contract. Complainants endorsed the $4,994.81 check that they had received from their homeowner’s insurer to Respondent. Respondent cashed the check. Over the next seven months, Complainants contacted Respondent every week to see when it would replace their roof. Although Respondent’s employees repeatedly assured Complainants orally and in writing that Respondent would perform the contract, Respondent never performed any work. Finally, on or about January 17, 2012, Respondent informed Complainants that it was out of business. In the meantime, water started leaking into the family room at Complainants’ house due to roof damage from the October 2010 hailstorm, causing additional damage to sheetrock, paint, and other parts of the interior. Complainant Mr. Sanchez put a tarpaulin on the roof to cover the area that was leaking, but the tarpaulin blew off. On or about August 1, 2012, Complainants paid $2,120.90 to Best All Types Roofing Company, Inc., License No. C-42.132352-R to replace the roof over the family room, using the insurance payment that was meant to pay Respondent to complete replacement of the entire roof. Complainants submitted pictures showing that the rest of the roof is in poor condition, even though it is not yet leaking. 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.[1] This matter lies within the Registrar’s jurisdiction.[2] 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.[3] Complainants bear the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[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] Complainants established that Respondent violated A.R.S. § 32-1154(A)(1) by abandoning its contract to replace the roof on Complainants’ house.[6] 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 29, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(C) (“The 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 . . . .”). [2] See A.R.S. §§ 32-1151 to 32-1169. [3] See A.R.S. §§ 41-1092.04 and 41-1092.05(D). [4] 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). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] 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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