ALJDEC decisions subject to certification as final

2013A-5269-ROC · Registrar of Contractors · 2016-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2015 APPEARANCES: Complainant Gerald Eagleston appeared on his own behalf. Respondent Crandell Roofing Inc. was represented by Aaron Coleman. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. 147367 and 256777 to Crandell Roofing Inc. (“Respondent”). On or about September 11, 2013, Gerald Eagleston (“Complainant”) discovered a leak in his roof during a heavy rainstorm. Complainant contacted Respondent to come to his home to check the leak and recommend a course of action as soon as possible. Respondent came to the home, went on the roof, examined the leak and the entire roof, and, at a minimum, put a tarp on the roof to stop the immediate problem with the leaking. On or about September 11, 2013, Complainant entered into a contract with Respondent to repair the leak in the roof and then to replace the entire roof at Complainant’s home at 1330 North 40th Street, Unit #7, Mesa, Arizona. The total contract price was $22,000.00 and Complainant paid $11,000.00 toward the contract. The initial inspection of the roof was done by William Todd Crandell, who started in the roofing industry in 1986 and has been working in the industry continually since 2003. After entering into the contract, Complainant decided to check with his insurance provider to determine if the repairs to the roof may be covered. An adjuster from the insurance provider went on the roof and determined that the roof did not need to be replaced. According to Complainant, the adjuster said that it was not imperative that he replace the roof at that time, and that if there was not another hard rain, it would not need to be repaired. Complainant then contacted two other roofing companies to check the roof. Neither company recommended replacing the entire roof. Complainant informed Respondent that he wished to cancel the contract. Complainant ended up having Gilbert Roofing repair the initial leak and a second area that was exhibiting problems for a total of $1,250.00. On or about November 8, 2013, Complainant filed a complaint with the Registrar against Respondent alleging that “no work [was] ever done.” The Registrar assigned the Complaint to its investigator, Beau Cruz, for investigation. On or about November 21, 2013, Investigator Cruz sent Respondent a notice that their contract did not meet the requirements of A.R.S. § 32-1158, Minimum elements of a contract. The Registrar’s file also includes a copy of Respondent’s business card that provides “COMM LIC# 256777” and “RES LIC# 147367” and Respondent’s invoice that provides “Lic: Residential #147367 Commercial #256777”. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(15); and A.R.S. § 32-1154(A)(6). At hearing, Complainant testified that he believed Respondent told him the roof needed to be replaced even though it did not need to be based on the statements of the insurance adjuster and the other contractors. Complainant acknowledged that he canceled the contract. Complainant stated that he did not believe he owed Respondent anything because Respondent did not perform any repair work on the roof and was seeking a refund of the $11,000.00 he paid to Respondent when he entered into the contract. Complainant did not present the testimony of any of the other contractors or the adjuster that he look at his roof. At hearing, Donovan Crandell, Respondent’s Qualifying Party, testified that he has been in the roofing industry for over 32 years. Mr. Crandell also indicated that he had previously performed a repair at Complainant’s home at no cost as a favor and that the repair would have cost any other customer $1,200.00 to $1,600.00. Mr. Crandell stated that he offered to do a joint inspection of the roof with the other contractors Complainant had contacted, but Complainant refused. Mr. Crandell stated that Respondent had set aside five to seven days to perform the work on Complainant’s roof and that he missed out on other opportunities when Complainant canceled the contract after entering into it. Mr. Crandell also stated that he had spoken to Shane with The Roofing Company, one of the contractors Complainant had look at the roof, who told Mr. Crandell that he had only investigated the leak and did not evaluate the need to repair or replace the entire roof. Mr. Crandell testified that opinions may vary from roofer to roofer as to when it is necessary to replace a roof or what repairs are necessary. Mr. Crandell stated that Complainant’s roof was about 20 years old and that at that time, roofs were commonly installed incorrectly. Mr. Crandell identified numerous problems with Complainants roof including the spacing, debris in valleys, no z bar along the channel, and the use of non- galvanized nails that rust. Mr. Crandell testified that he still believed Complainant’s roof needed to be replaced. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 5, 2016. Such prior License record reflects that Respondent’s license number 147367 is current with one open complaint. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 5, 2016. Such prior License record reflects that Respondent’s License No. 147367 is current and was suspended for non-renewal from August 1, 2005, through August 23, 2005; from August 1, 2011, through August 7, 2011; from August 1, 2013, through September 25, 2013; and from August 1, 2013, through September 18, 2015. Such prior License record also reflects that is one open complaint against Respondent’s license. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 5, 2016. Such prior License record reflects that Respondent’s License No. 256777 was voluntarily canceled on June 29, 2015, and was suspended for non-renewal from July 1, 2011, and July 28, 2011; and from July 1, 2013, through July 23, 2013. Such prior License record also reflects no prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The evidence at hearing established that Complainant canceled the contract after speaking to the insurance adjuster and two other contractors. Therefore, Complainant did not prove by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).[1] 4. Respondent’s business card and invoice did not include the acronym “ROC” before the license number, as required by A.R.S. § 32- 1124(B),[2] which in turn could be found to be a violation of A.R.S. § 32-1154(A)(3).[3] However, the Citation issued by the Registrar did not include an alleged violation of A.R.S. § 32-1154(A)(3). Rather, Respondent was cited with a possible violation of A.R.S. § 32- 1154(A)(15).[4] Complainant did not proffer any evidence to establish that the failure of Respondent to include the acronym “ROC” on its business cards and invoices was false, misleading, or deceptive advertising that may have either misled or injured Complainant or a member of the public. Therefore, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(15). 5. The evidence at hearing established that Respondent recommended the removal and replacement of the entire roof based on the experience and expertise of William Crandell and Donovan Crandell. Complainant did not provide any witnesses or documentation establishing that the recommendation had no basis and/or was made with the intent to deceive Complainant. Therefore, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(6).[5] 6. While there may be some issue as to money Complainant paid to Respondent towards the contract Complainant later cancelled, this is not the appropriate venue for that issue to be resolved. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Gerald Eagleston. 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, January 6, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” [2] A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’” on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [3] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [4] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]alse, misleading or deceptive advertising whereby any member of the public may be misled and injured.” [5] A.R.S. § 32-1154(A)(6) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” Collins English Dictionary defines “fraudulent” as “acting with or having the intent to deceive.” The Registrar does not interpret the term “fraudulent act” to be synonymous with common law fraud.

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