ALJDEC decisions subject to certification as final

2016A-4988-CHC-ROC · Registrar of Contractors · 2017-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth J. Fifield,

COMPLAINANT,

v.

Castleway Construction LLC,

License No. CR43.303031-D,

RESPONDENT.

No. 2016A-4988-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 23, 2017, at 8:30 a.m.

APPEARANCES: Elizabeth J. Fifield (“Complainant”) appeared on her own behalf; Castleway Construction LLC (“Respondent”) appeared through Aaron Spontaneo, its qualifying party/manager.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

According to the public website of the Registrar of Contractors (“the Registrar”), on February 8, 2016, License No. CR43.303031-D for dual roofing was issued to Respondent. That license was revoked on December 30, 2016. The record of this matter does not include the reason for the revocation.

On or about December 12, 2016, Complainant filed a complaint with the Registrar against Respondent’s license based on its failure to return any of the $4,821.76 that it had received from Complainant’s insurance company to repair the roof on her house at 6920 E. Pueblo Ave., Mesa, Arizona 85208. Complainant explained that she demanded that Respondent return the money after she learned that Mr. Spontaneo had been indicted for insurance fraud in Colorado. Complainant alleged that Respondent had not done any work on the project.

The Registrar assigned the complaint to its Investigator Beau Cruz to investigate. On January 5, 2017, Investigator Cruz performed a jobsite inspection, which Respondent did not attend. Investigator Cruz’s jobsite inspection notes noted that it did not appear that any work had been performed on the job, but that “rolled roofing over section of Arizona Room . . . appears to have been a previous repair issue as well as missing roof ridge board and roof tiles on roof ridge area towards the west (W) side of structure . . . .” Investigator Cruz forwarded the complaint to the Registrar’s Legal Department.

On or about January 6, 2017, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1).

Mr. Spontaneo on behalf of Respondent filed a written answer to the citation, denying that cause existed under the charged statute to discipline Respondent’s license and affirmatively alleging that Respondent had expended time and other resources to get Complainant’s insurance company to approve the claim and increase the approved insurance payout, that Respondent had repaired the flat roof section of the roof, and that, if Complainant had allowed access, Respondent would have completed repairing and/or replacing the roof.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

A hearing was held on March 23, 2017. Complainant testified and submitted ten exhibits. Respondent presented Mr. Spontaneo’s testimony and submitted seven exhibits. Investigator Cruz also testified.

Hearing Evidence

Investigator Cruz testified consistently with his January 5, 2017 jobsite inspection notes. Investigator Cruz testified that he performed a prehearing jobsite inspection on March 22, 2017, and that the jobsite was in the same condition that it had been in on his initial January 5, 2017 inspection.

Inspector Cruz testified that at the prehearing jobsite inspection, Complainant stated that Respondent had installed rolled roofing over skylights in the Arizona room and that the roof still leaked.

Complainant submitted exhibits that showed that Respondent entered into a contract to repair her roof on May 6, 2016, the price to be determined, that on May 12, 2016, Complainant’s homeowner’s insurer, Allstate Insurance Company (“Allstate”), denied the claim, that on June 12, 2016, Respondent requested re-inspection, that on June 29, 2016, Allstate issued an insurance payment of $3,369.69 for the repair, which Respondent deposited into Mr. Spontaneo’s account, that on July 20, 2016, Allstate issued an additional payment in the amount of $1,552.07, which Respondent also deposited into Mr. Spontaneo’s account, that on October 19, 2016, Allstate’s adjuster performed a third inspection, and that, as a result of the third inspection, on November 21, 2016, Allstate issued a check in the amount of $4,281.00, which Complainant deposited into her account.

Complainant testified that on November 10, 2016, she learned that Mr. Spontaneo had been indicted for insurance fraud in Colorado and that on November 22, 2016, she demanded that Respondent cease work on the project and return all monies paid to it.

Mr. Spontaneo testified that between May 6, 2016, and October 19, 2016, Mr. Spontaneo had spent time to correspond and meet with Allstate’s insurance adjuster and Respondent had spent time and money providing evidence to cause Allstate to approve Complainant’s claim for replacement of her entire roof, including getting eagle views and appraisals of the roof. Mr. Spontaneo testified that Complainant owed additional monies to Respondent for this work.

Mr. Spontaneo testified that Respondent could have completed repairs to the roof before the end of the year if Complainant had allowed access. Mr. Spontaneo testified that Complainant did not allow access but, instead, demanded that Respondent return all monies that Allstate had paid and Complainant had given to Mr. Spontaneo.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses, such as Complainant’s failure to provide reasonable access to allow Respondent to complete repairs to the roof, by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

On November 10, 2016, Respondent’s license in Arizona was current and in good standing. It could have performed repairs to or replacement of Complainant’s roof. Although Mr. Spontaneo had been indicted for insurance fraud in Colorado, that indictment could only be resolved by the Colorado court. Unless and until Mr. Spontaneo was convicted of a crime, the indictment did not affect the status of Respondent’s contractor’s license in Arizona.

Both parties agree that Complainant refused to allow Respondent to return to the job and complete the repairs to Complainant’s roof. Because a homeowner’s refusal to allow a contractor return to the jobsite provides a legal excuse for the contractor’s failure to complete the job, Complainant did not establish that Respondent abandoned the project or that cause exists to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Elizabeth J. Fifield’s Complaint in Case No. 2016-4988 against Respondent Castleway Construction LLC’s License No. CR43.303031-D shall be 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 will be five days from the date of that certification.

Done this day, March 30, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors