ALJDEC decisions subject to certification as final

2012A-3050-ROC · Registrar of Contractors · 2012-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2012, at 1:00 p.m. APPEARANCES: Complainant Sylvia E. Evans 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 Sylvia E. Evans (“Complainant”) against Respondent regarding its failure to perform its contract to replace the roof on her house at 7722 West Devonshire Avenue, Phoenix, Arizona. According to the Complaint, Complainant paid Respondent $4,578.83 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 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 September 14, 2012, the Registrar issued a Notice of Hearing, setting a hearing on October 17, 2012, at 1:00 p.m. at the OAH. The Registrar mailed a copy 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 September 20, 2012, Respondent sent a facsimile to the Registrar stating that Respondent had gone out of business and would not attend the October 17, 2012 hearing. A hearing was held on October 17, 2012. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the hearing did not conclude for forty 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 18, 2012, Respondent’s license had been revoked since February 6, 2012, four complaints had been closed as resolved/settled/withdrawn, eighteen complaints had resulted in discipline against Respondent’s license, and eight complaints were pending against the license. Hearing Evidence The roof on Complainant’s house was damaged in a hailstorm in October 2010. In April 2011, Respondent’s salesman contacted Complainant and requested her permission to negotiate with her homeowner’s insurer to repair her roof. On or about April 28, 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 $4,578.83 dated April 28, 2011, that was made payable to Complainant. On or about April 28, 2011, Complainant and Respondent’s representative signed a contract for Respondent to remove and replace the roof on her house and patio for a total cost of $8,928.71, with a $4,578.83 down- payment for Respondent to start the project. Complainant endorsed her homeowner’s insurer’s check to Respondent.[1] When Complainant signed the April 28, 2011 contract and endorsed the $4,578.83 check to Respondent, Respondent’s representative informed her that it was busy and that it probably would not replace her roof right away. Although Respondent subsequently provided to Complainant several dates on which it promised to begin her project, Respondent never performed any work at her property. However, Complainant was patient because her roof was not leaking and she did not consider herself to be in a desperate situation. On or about September 7, 2011, Complainant and Respondent’s representative entered into a new contract to upgrade the April 28, 2011 contract to include replacement of the tiles on the ridgeline of Complainant’s house for the same contract price. The September 7, 2011 contract acknowledged Complainant’s past payment of $4,578.83. In January 2012, Respondent sent a letter to Complainant, informing her that 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 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 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, October 18, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] The copy of the check that Complainant showed to the Administrative Law Judge did not any endorsements. Complainant stated that she assumed that Respondent cashed the check because her insurance adjuster informed her that Respondent claimed to have completed the project. [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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