ALJDEC decisions subject to certification as final

2012A-893-ROC · Registrar of Contractors · 2013-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2013

APPEARANCES: Complainant appeared on his own behalf; Respondent failed to appear.

WITNESSES: Lorenso Bush III

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that Respondent, without legal excuse, abandoned the project for which Respondent had been hired. In addition, the Citation and Complaint issued in this matter alleges that Respondent has violated the “no pay” provision of the ROC statutes. Respondent did not appear at the hearing to deny these allegations or challenge Complainant’s evidence. This tribunal entered the complaint file received from the Registrar of Contractors (“Registrar” or “ROC”) into the record. Complainant presented evidence and testimony. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent abandoned Complainant’s job and that revocation of the license is warranted. FINDINGS OF FACT 1. During the time relevant to this complaint, Respondent was the holder of License No: K-42.265407-D, a specialty dual residential and commercial contractor’s license issued by the ROC. The license authorized Respondent to perform roofing work for both residential and commercial projects. Clinton Shawn Hyman is the Qualifying Party. 2. In May 2011, after a hailstorm had damaged Complainant’s roof in October 2010, Complainant hired Respondent to remove and replace his roof and two rooftop air conditioners for a price of $15,137.11. Complainant paid Respondent $10,063.34 with insurance proceeds that he signed over to Respondent for the roof. He also signed over $4,073,77 to another company who replaced the air conditioners (apparently as a subcontractor for Respondent). 3. Although the air conditioners were replaced by the other company, Respondent never did any work on the roof and Complainant was eventually unable to contact Respondent. 4. The evidence shows that Respondent abandoned Complainant’s project without legal excuse. It also shows that Respondent owes restitution to Complainant in the amount of $10,063.34. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation and Complaint alleges a violation of A.R.S. § 32- 1154(A)(1) (prohibiting abandonment of a project). There is no question that Respondent abandoned the project. 3. Respondent is found to have violated A.R.S. § 32-1154(A)(1) (prohibiting abandonment of a project). 4. The Citation and Complaint also alleged a violation of A.R.S. § 32-1154(A)(11), the “no pay” provision. The allegation was based on a statement that Complainant made in his complaint that he was being sought for collection of a debt owed the air conditioner contractor. However, at hearing Complainant stated that the collection action had been dropped. Therefore, there was no prima facie case for that allegation at hearing and it is dismissed. 5. Administrative notice is hereby taken of Respondent’s prior license record as reflected on the Registrar’s public website on February 13, 2013. That record shows that Respondent’s license was revoked multiples times (23 in total) in 2012. Pursuant to A.R.S. § 32-1154(C), the revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to further discipline the license. 6. Respondent’s license should be revoked for this matter. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that License No: K- 42.265407-D held by Respondent Foresight Roofing, LLC dba Countrywide Shingle be revoked.

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 40 days from the date of that certification.

Done this day, February 21, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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