ALJDEC decisions subject to certification as final

2016A-1333-ROC · Registrar of Contractors · 2016-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2016, at 8:00 a.m. APPEARANCES: Gary Lane Pasciak (“Complainant”) appeared on his own behalf; Louis Ruffin Byrd dba, Byrd Roofing and Construction failed to appear. 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2015, License No. CR42.196515-D was suspended for a Recovery Fund payout credential and on April 27, 2016, the license was revoked.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 22, 2016, Complainant filed a complaint with the Registrar, alleging that Respondent had abandoned its November 2, 2015 contract to replace the roof on Complainant’s house at 2280 Maricopa Street, Chino Valley, Arizona 86323. According to the complaint, Complainant had paid Respondent $7,400.00 on the contract price of $14,886.40, but Respondent did not perform any work on the project. Complainant attached to the complaint copies of the contract and of the November 2, 2015 check, which Respondent cashed on November 10, 2015. 4. The Registrar assigned the complaint to its Investigator, Jim Dimond (“Investigator Dimond”), for investigation. Investigator Dimond testified that on May 5, 2016, he confirmed with Complainant that Respondent had not performed any work at Complainant’s house after being paid $7,400.00. Investigator Dimond sent the matter to the Registrar’s Legal Department. 5. On May 17, 2016, the Registrar issued a Citation, charging cause to suspend or revoke Respondent’s licenses under A.R.S. § 32- 1154(A)(1). Respondent filed a written answer, alleging generally that some former employees had embezzled monies, which prevented Respondent from completing his contractual obligations. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 6. The Registrar subsequently issued a Notice of Hearing, setting the matter for a hearing on July 27, 2016, at 10:00 a.m. 7. On or about July 25, 2016, Respondent’s wife on his behalf sent an email to OAH, requesting that Respondent be allowed to appear telephonically in this matter, as well as five other matters that had been referred to OAH, and providing a telephone number. 8. On July 26, 2016, the Administrative Law Judge (“ALJ”) issued an order continuing the hearing to August 16, 2016, at 8:00 a.m. at Complainant’s request. The order continuing the hearing was sent to Respondent at his address of record. 9. A videoconference hearing was held on August 16, 2016, from the Registrar’s Flagstaff office. Before the ALJ went on the record, she placed a telephone call to Respondent at the number that his wife had provided in the email. No one answered the call and the ALJ left a message, providing the direct number to the hearing room at the Phoenix office of OAH. 10. Although the duly noticed hearing did not begin until 8:23 a.m. on August 16, 2016, and did not conclude until 8:35 a.m., Respondent did not appear, telephonically or through an 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 his license. 11. Complainant testified to establish the facts set forth in his complaint. 12. Investigator Dimond testified that nine consumer complaints have been filed with the Registrar against Respondent’s licenses. Investigator Dimond testified that Respondent had received a total of $47,156.00 for his nine contracts with the consumers who filed the complaints, but had failed to perform any work on all but one of the contracts. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The order continuing the hearing that OAH mailed to Respondent at its address of record was reasonable and he is deemed to have received notice of the continued hearing.[2] 3. The suspended and revoked statuses of Respondent’s licenses do not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.[3] 4. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[4] 5. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 6. Complainant established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).[6] 7. 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 16, 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. §§ 41-1092.04; 41-1092.05(D). [3] 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 . . . .” [4] 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). [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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826