ALJDEC - Licensing
2023A-09778-CHC-ROC · Registrar of Contractors · 2023-12-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jake Willis Fennema,
COMPLAINANT
v.
TN Holdings, LLC
DBA: Fresh Home Solutions
License No. ROC 324312,
RESPONDENT
No. 2023A-09778-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 16, 2023
APPEARANCES: Jake Fennema appeared on his own behalf. Respondent failed to appear.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
_____________________________________________________________________
FINDINGS OF FACT
TN Holdings, LLC dba Fresh Home Solutions (“Respondent”) is the holder of License No. 324312 issued by the Arizona Registrar of Contractors (“Registrar”).
On or about April 27, 2023 Jake Fennema (“Complainant”) signed a Contingency Agreement (“Agreement”) with Respondent for a roof replacement.
On or about August 17, 2023 Complainant filed a complaint against Respondent alleging abandonment with respect to the project.
The Registrar issued a Citation against Respondent, charging a possible violation of Ariz. Rev. Stat. § 32-1154(A)(1).
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on November 17, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A September 26, 2023 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on November 17, 2023.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Administrative notice is taken of Respondent’s license records on November 16, 2023. Such prior license record reflects: (1) Respondent’s License No. 324312 was first issued on April 25, 2019, is currently active, and is renewed through April 30, 2025. Such prior license record also reflects that there was this open complaint and no other previous complaints against Respondent’s license.
Investigator Jim Diamond testified that he received Complainant’s complaint on or about August 23, 2023 at which time he sent an allegation letter to Respondent notifying him of the complaint. After ten business days had passed, Mr. Diamond contacted Complainant to inquire whether there had been any resolution. Upon learning there had not been, the complaint was forwarded to the legal department and a citation was issued.
Mr. Diamond testified that the Registrar received an answer to the Citation from Respondent which indicated that Respondent had returned $3,565.00 and kept $3,793.00 of the $7,358.00 that was tendered. The $3,793.00 that was kept was said to represent 25% of the claim that Respondent contended it was entitled to keep pursuant to the rescission clause in the Agreement.
Mr. Diamond further testified that on November 16, 2023 he conducted a pre-hearing inspection to which Respondent was invited. Respondent did not show and the roof has still not been replaced.
Jake Fennema testified that Respondent had knocked on his door in an attempt to sell solar panels, at which time Mr. Fennema advised Respondent he needed a new roof instead. Respondent advised they were able to do a new roof and entered into the subsequent Agreement. Mr. Fennema testified that Respondent wanted to know when the insurance company would come out to inspect the roof so that Respondent could be present.
At the time of the insurance roof inspection, Respondent arrived late. Notwithstanding, thereafter Mr. Fennema was issued a check for $7,358.00 from his insurance company for a new roof which he promptly signed over to Respondent per its request and Agreement. No testimony was offered regarding receiving any detailed scope of work from the insurance company.
Mr. Fennema further testified that he told Respondent he did not have any additional money beyond the $1,000 deductible to pay towards a new roof and was reassured by Respondent that they would get any additional monies needed from Complainant’s insurance company. At this time, Mr. Fennema did not have any estimate of the total cost of the roof.
After multiple calls to Respondent requesting a “bid” for the new roof, Mr. Fenneman ultimately received an invoice dated May 18, 2023 (“Invoice”) indicating the total for the new roof would cost $12,405.00. With credit for the $7,358.00 already tendered, it left a balance of $5,047.00.
Mr. Fennema testified that after multiple attempts to communicate with Respondent, Respondent told him that they had been trying to contact the insurance company, but the adjuster had been unresponsive to them. Mr. Fennema admitted that he did not have any subsequent conversations with the insurance company/adjuster to confirm or deny Respondent’s attempts.
According to Mr. Fennema, due to Respondent’s lack of communication and work, he intended to cancel the work prior to even receiving the Invoice. He believed that sometime in May, 2023 after he received the Invoice he advised Respondent that he wanted his money back. He did not receive any refund from Respondent, however, until August 28, 2023.
Laurel Will, Complainant’s daughter, also testified. She confirmed that Complainant had advised Respondent that he did not have any additional money to put toward the roof and that an additional money would have to come from the insurance company. She further testified that Respondent assured Complainant that “they did this all the time” and they would get the additional money from the insurance company.
Ms. Will also stated that she believed Complainant did not cancel the Agreement in May as he testified, but rather it was sometime in August, 2023.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. §32-1154(A).
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
The Agreement reads, in pertinent part:
After the expiration of this three day period, customer shall only have the right to terminate this agreement if Customer’s insurance company denies customer’s claim for storm damage repairs or replacements on the above mentioned property. IN THE EVENT THAT CUSTOMER WISHES NOT TO USE FRESH HOME SOLUTIONS FOR THE INSURANCE REPAIRS, 25% OF THE APPROVED AMOUNT IS DUE TO FRESH HOMES SOLUTIONS...Work shall commence after approval has been obtained from customer’s insurance company, the mandatory three day waiting period has passed, and authorization from the customer has been given to Fresh Home Solutions to begin work.
Ariz. Rev. Stat. § 32-1154(A)(1) states: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Respondent did not appear at the hearing to provide testimony or defend its license. Judicial notice was taken of the Notice of Hearing and all of its documents contained therein. Within those documents is Respondent’s answer to the Citation, to which Mr. Diamond also testified and read into the record.
In Respondent’s answer, he acknowledged that he returned $3,565.00 and kept $3,793.00, representing 25% of the “claim” pursuant to its rescission clause. Implicit in the action of returning these funds is that the total amount of the “claim” from the Invoice is an “approved” amount as required by its own Agreement. If the Invoice amount was not “approved,” it follows, then, that Respondent would have kept only 25% of the amount tendered ($7,358.00).
Respondent’s own actions support the conclusion that the Invoice issued on May 18, 2023 was an “approved” amount by the insurance company. Thus, work should have commenced thereafter.
The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract without legal excuse for the abandonment in violation of Ariz. Rev. Stat. § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 324312 for a period of 1 day.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, December 1, 2023.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
TN Holdings, LLC
[email redacted]
Jake Fennema
[email redacted]
By: OAH Staff