ALJDEC decisions subject to certification as final

2016A-5022-CHC-ROC · Registrar of Contractors · 2017-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elad Aroshas,

COMPLAINANT,

v.

Castleway Construction, LLC,

License No. CR42.303031-D,

RESPONDENT.

No. 2016A-5022-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2017, at 1:00 p.m.

APPEARANCES: Elad Aroshas (“Complainant”) appeared on his own behalf; Castleway Construction, LLC (“Respondent”) appeared through Aaron Spontaneo, its qualifying party/manager.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

According to the public website of the Registrar of Contractors (“the Registrar”), on or about February 8, 2016, License No. CR42.303031-D for dual roofing was issued to Respondent.

On or about December 13, 2016, Complainant filed a complaint with the Registrar against Respondent’s license based on its alleged abandonment of a contract to repair the roof on Complainant’s house at 3835 E. Sheena Dr., Phoenix, Arizona 85032 for the $5,492.62 that Complainant’s insurance company had paid Respondent.

The Registrar assigned the complaint to its Investigator Steve Klein to investigate. Investigator Klein verified that Respondent had not performed any work on the project and referred the matter to the Registrar’s Legal Department.

On or about December 22, 2016, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1).

Respondent filed a timely written answer to the Citation, denying that it had abandoned the contract because, although it cashed Complainant’s homeowner’s insurer’s check for $5,492.62 in October or November 2016, on December 5, 2016, Complainant’s insurer had debited the check from Respondent’s checking account. Respondent attached to the written answer an excerpt from its checking account statement that showed the debit.

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

A hearing was held on February 23, 2017. Complainant testified on his own behalf. Mr. Spontaneo testified on behalf of Respondent. Investigator Klein testified.

Complainant testified that he wanted to get the money for the roof back from Respondent or his insurer. Complainant acknowledged that he did not have any documentary evidence that Respondent still held his homeowner’s insurance company’s money. Complainant testified that he had contacted his insurer two weeks before the hearing and had been informed that the matter was “under investigation.”

Mr. Spontaneo testified consistently with Respondent’s written answer. Mr. Spontaneo testified that Respondent’s work on the roof was delayed because Complainant was in Israel. Mr. Spontaneo testified that the insurance money had been debited from Respondent’s account and that it no longer had any money for the job. Mr. Spontaneo testified that Respondent had never started work on the project.

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 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.R.S. § 32-1101(A)(3) provides that "‘[c]ontractor’ is synonymous with the term ʻbuilder’ and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to” perform construction. (Emphasis added.)

Although Respondent did not begin any repairs to the roof, it also did not receive any compensation for performing this work. Because Complainant did not establish that Respondent performed any contracting at his house as defined by statute, Complainant did not establish that Respondent abandoned his contracting work on the project, thereby providing cause to suspend or revoke Respondent’s contractor’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 Elad Aroshas’ Complaint in Case No. 2016-5022 against Respondent Castleway Construction, LLC’s License No. CR42.303031-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, February 23, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors