ALJDEC decisions subject to certification as final

2012A-2116-ROC · Registrar of Contractors · 2012-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2012, at 8:00 a.m. APPEARANCES: Complainant Julie C. Mansfield appeared on her 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”). Respondent’s address of record is 1285 South Idaho Road, Apache Junction, Arizona, 85119-6422. The Registrar received a complaint from Julie C. Mansfield (“Complainant”) against Respondent regarding its failure to perform its contract to replace the roof on her house at 20842 North 38th Drive, Glendale, Arizona. According to the complaint, Complainant paid Respondent $2,972.33 for the work. The Registrar issued a Citation and Complaint charging Respondent with possible violations of A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(15). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On or about August 15, 2012, the Registrar issued a Notice of Hearing, setting a hearing on October 3, 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. 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.” On or about August 29, 2012, Respondent sent a facsimile to the Registrar stating that Respondent had gone out of business and would not attend the October 3, 2012 hearing. A hearing was held on October 3, 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 twenty 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 October 16, 2012, Respondent’s license had been revoked since February 6, 2012, four complaints had been closed as resolved/settled/withdrawn, fourteen complaints had resulted in discipline against Respondent’s license, and twelve 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 March 31, 2011, Respondent’s salesman contacted Complainant and on that date, she signed an agreement authorizing Respondent to negotiate with her homeowner’s insurer to repair her roof. The March 31, 2011 agreement showed the names, “Countrywide Shingle” and “Countrywide Shingle & Siding, LLC,” and Respondent’s license number. On or about April 8, 2011, an adjuster from Complainant’s homeowner’s insurer inspected the roof and reviewed Respondent’s estimate to repair the roof. Based on Respondent’s estimate, Complainant’s homeowner’s insurer issued a check in the amount of $2,972.33 dated April 8, 2011, that was made jointly payable to Complainant, her father, Louis Mansfield,[1] and her mortgage company. On or about April 11, 2011, Complainant, Complainant’s father, and Complainant’s mortgage company endorsed her homeowner’s insurer’s check to Respondent. Thereafter, Respondent cashed the check. During the summer of 2011, Complainant made numerous telephone calls to Respondent to enquire about when it would start construction on the project to replace her roof. Respondent’s employees informed her that it did not have sufficient crews to perform all the work that it had contracted to perform in the Phoenix area, but that it would call her when it was ready to work on her house. On or about September 8, 2011, Complainant and Respondent’s representative signed a contract for Respondent to remove and replace the roof on her house for a total cost of $4,048.09 that acknowledged the $2,972.33 payment. The September 8, 2011 contract required Respondent to provide an upgrade on the shingles at no additional charge to Complainant. The September 8, 2011 contract showed the names, “Countrywide Shingle” and “Countrywide Shingle & Siding, LLC,” and Respondent’s license number. On September 8, 2011, Respondent’s representative informed Complainant that it would start her project during the first part of November 2011. In November 2011, Respondent’s office personnel informed Complainant that it needed a 60-day extension to start her project. Complainant did not agree to the extension. After December 1, 2011, Complainant and her father contacted Respondent numerous times, but it did not start the project to replace the roof on her house. On or about January 17, 2012, Respondent sent a letter to Complainant, informing her that it was out of business but that it was trying to find other contractors in Arizona to complete its unfinished contracts. 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 her right to prosecute her 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 copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it appears that Respondent received actual notice of the hearing.[4] Complainant bears the burden of proof to establish Respondent’s statutory violations 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] The printed contracts included the names, “Countrywide Shingle” and “Countrywide Shingle & Siding, LLC,” instead of the name on Respondent’s license, “Foresight Roofing LLC dba Countrywide Shingle.” Therefore, Respondent violated A.R.S. § 32-1154(A)(15).[8] 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, October 16, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Mansfield had co-signed the mortgage to allow Complainant to purchase the house. At the time of the hearing, Complainant was attempting to refinance her house and to remove her father from the title. [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.” [8] A.R.S. § 32-1154(A)(15) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.”

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