ALJDEC decisions subject to certification as final

2015A-2772-ROC · Registrar of Contractors · 2016-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2016 APPEARANCES: Complainant appeared on his own behalf; Jeremey Hahn and Wes Hahn for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On December 9, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 10:00 a.m. January 20, 2016, at the Office of Administrative Hearings. 2. Respondent Hahn Roofing LLC holds license number CR42.247326-D issued by ROC.[1] Wes Hahn, Respondent’s qualifying party and Jeremy Hahn Respondent’s owner appeared for Respondent. 3. Complainant Jason Scott Forsberg entered an agreement or contract in which Respondent was to provide roofing services to Mr. Forsberg. Respondent and Complainant entered additional agreements or change orders that modified their original agreement. 4. There was a dispute between the two parties related to the payments by Complainant and as to the amount of material required for the job. 5. The two parties agreed to a meeting to take place on June 12, 2015, at which Mr. Forsberg’s general contractor was also to be present. 6. Respondent tried to arrange for a Builder Confidence Meeting with ROC’s “Sparky,” but she was not available on the 12th. Respondent takes the position that Mr. Forsberg was unwilling to change the meeting date, whereas his position is that he was not aware of Respondent’s plan. 7. The two parties dispute what happened on June 12, 2015, but they agree that the general contractor and the Hahns got into an argument or that voices were raised. 8. The parties also agree that Respondent had loaded its tools and equipment prior to the meeting. At the hearing, Respondent took the position that they has another job for which they needed their equipment. 9. After the argument, the Hahns left the premises saying words to the effect that we are done here. Mr. Forsberg asserts that this is when they quit and abandoned the job. Respondent disagrees and takes the position that it was only the meeting that they were referring to, not the job. 10. Respondent’s Robin Petrilli testified after the meeting on June 12, 2015, Jeremy Hahn instructed her to resolve the issue. She testified to the effect that in furtherance of that request, over the next two to three weeks, she sent Complainant several emails asking how the resolve the matter. 11. Ms. Petrilli testified that she also sent Complainant an email showing that Respondent had made an error in its calculations regarding the number or rolls of underlayment required at the job. 12. With his Complaint, Mr. Forsberg included an email from Ms. Petrilli dated June 13, 2015, in which Respondent acknowledged an error in its billing for the underlayment. 13. With its Answer dated September 29, 2015, Respondent included three emails to Mr. Forsberg. The first was dated June 19, 2015, and provided information related to the underlayment calculations. The second and third were dated June 22 and June 23, 2015. 14. The June 22nd email shows that Respondent would like to walk and measure the roof “to deal with this once and for all.” 15. The June 23rd email shows that Respondent would like to come to an agreement with Complainant and “finish off the installation of the roof.” 16. ROC’s Steve Philpott planned to conduct an inspection on July 16, 2015, but another contractor was already working on the roof on that date. 17. On June 25, 2015, Mr. Forsberg filed with ROC a Complaint against Respondent. 18. On September 14, 2015, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32- 1154(A)(1). CONCLUSIONS OF LAW 1. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(1). 2. A party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 7. Ariz. Rev. Stat section 32-1154(A) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: …. 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

8. Complainant has not shown by a preponderance of the evidence that Respondent committed the alleged violation of Ariz. Rev. Stat section 32-1154(A)(1). 9. Consequently, this matter should be dismissed. ORDER IT IS ORDERED that on the effective date of the final Order in this matter, the Citation and Complaint in Case No. 2015-2772 are dismissed. 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 is forty days after the date of that certification. Done this day, January 28, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows Respondent’s license number as 247326. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used.

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