ALJDEC - Licensing
2023A-12671-CHC-ROC · Registrar of Contractors · 2024-03-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dusty Alynn,
COMPLAINANT
v.
Skyland Roofing LLC
License No. ROC 329159,
RESPONDENT
No. 2023A-12671-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 16, 2024, 1:00 P.M.
APPEARANCES: Complainant Dusty Alynn appeared on her own behalf; Vanessa Larios, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Nos. 1 - 6; Respondent’s Exhibit Nos. 1 - 2.
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Skyland Roofing, LLC (Respondent), is the holder of License Number 329159 issued by the Registrar of Contractors (Registrar).
2. On or about November 8, 2023, Dusty Alynn (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with roofing work to be performed by Respondent at a residence in Tucson, Arizona (“project”).
3. The Registrar performed no inspection, but was advised by Respondent that it was going out of business.
4. Thereafter, the Registrar then issued a Citation to Respondent, dated December 1, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
5. The Registrar issued a Notice of Hearing that set a hearing for February 12, 2024, at 1:00 P.M.
6. At the February 12, 2024, hearing, Complainant testified on her own behalf; Respondent presented the testimony of Vanessa Larios. Gregory Johndrow, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal admitted Complainant’s Exhibit Nos. 1 - 6 and Respondent’s Exhibit Nos. 1 - 2.
7. The Investigator testified on behalf of the Registrar consistently with his job notes. He testified he was advised that Respondent did no work and was going out of business.
8. As herein relevant to the Citation, Complainant Dusty Alynn testified that no work was performed on the project. She stated she paid Respondent $6,300.00 but later cancelled the contract with Respondent due to Respondent’s delay, but did not receive a refund.
9. As herein relevant to the Citation, Vanessa Larios, member of Respondent, testified that no work was performed by Respondent but that she was trying to pay back the money.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on June 4, 2020, and is suspended as of December 26, 2023. The site also reflects four open cases, one disciplined case, and one resolved/settled case..
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The suspended status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The 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 . . .”).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
...
6. A.R.S. § 32-1154(A)(1). Complainant has presented sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). There was no dispute that Respondent did not commence the project and there was no evidence presented of a valid legal excuse for failing to do so.
7. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Skyland Roofing, LLC’s (Respondent), License Number 329159 is suspended for five (5) days.
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, March 4, 2024
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
c/o Gregory Johndrow, Investigator
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
Skyland Roofing LLC, Respondent
2204 E. Sunland Vista
Tucson, AZ 85713
[email redacted]
Dusty Alynn, Complainant
6465 N. Featherstone Trl.
Tucson, AZ 85743
[email redacted]
By: OAH Staff