ALJDEC decisions subject to certification as final

2012A-556-ROC · Registrar of Contractors · 2012-07-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 26, 2012, at 1:00 p.m. APPEARANCES: Complainant Jose Alberto Mendoza appeared on his own behalf; Spanish translator Iris Lamas provided translation; Respondent Foresight Roofing, L.L.C. 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, AZ 85119-6422. The Registrar received a complaint from Jose Alberto Mendoza (“Complainant”) against Respondent regarding its failure to perform its contract to install new roofs on the structures on his property at 4750 North 49th Drive, Phoenix, Arizona. 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, AZ 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 June 26, 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. A hearing was held on June 26, 2012. Complainant submitted four exhibits and testified on his own behalf through a Spanish interpreter. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. 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 July 5, 2012, Respondent’s license had been revoked since February 6, 2012, three complaints had been closed as resolved/settled/withdrawn, five complaints had resulted in discipline against Respondent’s license, and twenty-one complaints were pending against the license. Hearing Evidence On or about February 9, 2011, Complainant signed a printed agreement to allow Respondent to negotiate directly with Complainant’s homeowner’s insurer to repair damage caused by a hailstorm. Respondent’s license number was printed at the top of the February 9, 2011 agreement. On or about March 8, 2011, Complainant and Respondent’s representative signed a contract for Respondent to remove and replace the roofs on his house, shed, and garage/guesthouse for a total cost of $10,792.99, with $9,405.98 due for Respondent to start the project. Respondent’s license number was printed at the top of the March 8, 2011 contract. Complainant’s homeowner’s insurer issued two checks to Complainant and his wife and their mortgage company. Complainant, his wife, and their mortgage company endorsed the checks. Complainant used the proceeds to pay to Respondent the $9,405.98 that the parties’ contract required for Respondent to start the project. Respondent never started work on its contract to replace the roofs on Complainant’s house, shed, and garage/guesthouse. 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.[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] Complainant bears 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] Complainant established that Respondent violated A.R.S. § 32-1154(A)(1) by abandoning its contract to replace the roofs on the structures on Complainant’s property.[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, July 9, 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). 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 . . . .” [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 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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