ALJDEC decisions subject to certification as final

2016A-1193-ROC · Registrar of Contractors · 2016-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2016, at 10:00 a.m. APPEARANCES: Ralph H. Harmsen (“Complainant”) appeared telephonically on his own behalf; Louis Ruffin Byrd dba, Byrd Roofing and Construction appeared telephonically on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on whether cause exists to suspend or revoke Respondent’s licenses under A.R.S. § 32-1154(1). 2. Administrative notice is taken of the Registrar’s public website pursuant to A.A.C. R4-9-117. On or about May 24, 2004, the Registrar issued License Nos. CR42.196516-D and CR42.196515-D for dual roofing to Respondent. On November 12, 2015, License No. CR42.196515-D was suspended for a Recovery Fund payout credential and on April 27, 2016, the license was revoked. On November 12, 2015, License No. CR42.196516-D was suspended for a Recovery Fund payout against an associated license. 3. On or about April 12, 2016, Complainant filed a complaint with the Registrar, alleging that Respondent had abandoned its November 20, 2015 contract to replace the roof on Complainant’s house at 1877 Kingswood Drive, Prescott, Arizona 86305. According to the complaint, Complainant had paid Respondent $6,000.00 on the contract price of $16,000.00. 4. The Registrar assigned the complaint to its Investigator, Jim Dimond (“Investigator Dimond”), for investigation. Investigator Dimond testified that on April 27, 2016, he confirmed with Complainant that Respondent had not performed any work at Complainant’s house. 5. Investigator Dimond testified that eight consumer complaints have been filed with the Registrar against Respondent’s licenses and that in only one of the eight complaints had Respondent had performed any work. Investigator Dimond testified that Respondent had received a total of $43,031.22 for his eight contracts with the consumers who filed the complaints. Investigator Dimond testified that the Recovery Fund payout against License No. CR42.196515-D was just shy of $20,000.00. 6. Respondent testified that he had used the $6,000.00 that Complainant paid to purchase materials from Allied Building Materials in Prescott (“Allied”). Although Allied was ready to deliver the materials to Complainant’s house, Complainant refused to accept delivery. 7. Complainant acknowledged that he had confirmed with Allied that Respondent had paid for the materials. Complainant testified that his attorney had advised him not to accept the materials because he could not obtain bids to replace the roof while his complaint against Respondent was still pending. Complainant testified that he assumes that other contractors’ bids will include the cost of materials and that, in any event, he does not have room on his property to store the materials until they are used. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he 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.”[5] 4. Because Respondent’s licenses are revoked or suspended, it cannot itself perform work or subcontract to others the job of replacing Complainant’s roof.[6] 5. Complainant established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).[7] Although if Complainant is able to use the materials that Respondent purchased for the job, it may reduce Complainant’s damages, Respondent’s mere purchase of the materials does not vitiate the violation because he contracted to replace Complainant’s roof, not merely to provide materials. 6. Respondent’s poor license histories are considered as factors in aggravation of the penalty in this case. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Louis Ruffin Byrd dba, Byrd Roofing and Construction’s License Nos. CR42.196516-D and CR42.196515-D shall 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 five days from the date of that certification. Done this day, August 5, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(A). [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See A.R.S. §§ 32-1101(A)(3) (definition of contractor); 32-1151 (prohibiting contracting without a license); and 32-1154(A)(17) (prohibiting contracting while license is suspended). [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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