ALJDEC decisions subject to certification as final

2010A-1001246-ROC · Registrar of Contractors · 2010-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2010 APPEARANCES: Larry and Evelyn Robinson appeared personally. Carla Reaves represented herself and Cochise County Roofing and Referrals, L.L.C. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ At the commencement of the scheduled hearing, the parties agreed that the Citation and Complaint in the above-entitled matter should be amended as follows: Evelyn Robinson is named as a Co-Complainant and Cochise County Roofing and Referrals, L.L.C. is named as a Co-Respondent.[1] Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Carla Reaves, doing business as Cochise County Roofing and Referrals, is the holder of License No. 239510, a Class K-42 contracting license issued by the Registrar of Contractors. License No. 239510 was voluntarily canceled on May 22, 2009. 2. Cochise County Roofing and Referrals, L.L.C. (“LLC”) is the holder of License No. 255723, a Class C-42 contracting license issued by the Registrar. License No. 255723 was issued on May 22, 2009. Ms. Reaves is LLC’s sole member and qualifying party. 3. On January 7, 2010, Evelyn and Larry Robinson (“Complainants”) filed a written Complaint alleging deficient workmanship by Ms. Reaves on a roofing project at Complainants’ residence in Sierra Vista, Arizona. Complainants’ Complaint is incorporated herein by reference. The Registrar originally designated the Complaint as Case No. S10-0100, but later re-designated it as 2010A-1001246-ROC. 4. The Registrar issued a Citation and Complaint in Case No. 2010A- 1001246 charging Ms. Reaves’ License No. 239510 with violating the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1124(B), and (23). 5. The Registrar forwarded Case No. 2010A-1001246 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On October 1, 2009, Evelyn Robinson entered into a written contract with Cochise County Roofing & [sic] Referrals for the repair of Complainants’ roof. 7. The parties’ written contract did not list a contracting license number for Cochise County Roofing & [sic] Referrals. 8. At the time of the parties’ written contract, Ms. Reaves’ License No. 239510 was canceled. Therefore, the reference in the contract to Cochise County Roofing & [sic] Referrals is determined to refer to LLC. 9. The parties’ contract provided that Complainants pay LLC the sum of $3,490.00, which represented one-half of the contract price. Complainants paid the down payment to LLC by check on October 1, 2009. The balance of the contract price became due upon completion of the roofing project. 10. The parties’ contract provided that LLC would accept “ALL Major Credit Cards.” [Emphasis in the original]. 11. The parties’ contract also provided that LLC would warranty its workmanship for five years, rather than LLC’s standard warranty term of two years. 12. Upon completion of the project, LLC presented Complainants with a Credit Card Authorization Form for Complainants to complete and return so that they could pay the balance of the contract price with their credit card. Complainants were informed that LLC did not yet have a credit card machine, but that it would get its account finalized shortly thereafter. Complainants refused to compete and return the Credit Card Authorization Form or to travel to LLC’s business office to conduct the credit card transaction. To date, Complainants have not paid LLC the complete contract price. 13. On December 3, 2009, LLC staff spoke by telephone with Evelyn Robinson, who advised that Complainants were waiting for a city inspector from Tucson to inspect interior water damage to their residence. Such damage was not the result of LLC’s workmanship. 14. By letter dated December 4, 2009, LLC, using the name Cochise County Roofing, informed Complainants that LLC had made several unsuccessful attempts to collect the final payment for the project from Complainants. LLC made a written demand for payment. The letter did not list LLC’s contracting license number or the acronym “ROC” preceding it. 15. On December 17, 2009, LLC staff left a voice mail message for Complainants requesting a call back regarding the status of payment. 16. In response to the filed Complaint, the Registrar’s assigned inspector, Mike Nieves, conducted a jobsite inspection on February 16, 2010, to view the Complaint items. 17. On February 17, 2010, Inspector Nieves issued a Corrective Work Order, which required LLC to timely complete the following Complaint items by appropriate means: 1b, 1c, 1e, 1g, and 3. 18. The Registrar’s written directive issued to LLC did not require any action on the following Complaint items: 1a, 1d, 1f, and 2. 19. Despite numerous attempts by LLC to arrange access to Complainants’ residence to perform the required remedial repairs, Complainants denied LLC access to their property. Complainants’ denial of access to LLC is determined to have been unreasonable and without legal justification. 20. At hearing, Complainants’ failed to present credible evidence that LLC violated local building code requirements during the roofing project. The fact that a city inspector would not “sign off” on LLC’s workmanship does not equate to a violation of local building code requirements. There is no credible evidence that the city inspector had the authority or duty to “sign off” on LLC’s roof repairs. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over the contracting licenses for Ms. Reaves and LLC. 2. Pursuant to A.R.S. § 32-1154(C), the cancellation of Ms. Reaves contracting license does not deprive the Registrar of jurisdiction to conduct the instant disciplinary action against that license. 3. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 4. Ms. Reaves did not violate the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1124(B), and (23), as charged in the Citation and Complaint issued by the Registrar. Her contracting license had been canceled months prior to the Complainants and LLC entering into the above-described contract. 5. The evidence of record does not support a conclusion that LLC violated the provisions of A.R.S. § 32-1154(A) (2). 6. LLC violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108. 7. LLC violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B) by failing to properly list its contracting license number, preceded by the acronym “ROC” in the parties’ contract and other LLC documentation. 8. The evidence of record does not support a conclusion that LLC violated the provisions of A.R.S. § 32-1154(A) (23). Complainants unreasonably and without legal justification denied LLC’s repeated requests for access to Complainants’ residence so that LLC could comply with the Registrar’s written directive. RECOMMENDED ORDERS The Citation and Complaint against Ms. Reaves’ License No. 239510 shall be dismissed on the effective date of the Order entered in Case No. 2010-1001246. License No. 255723 issued to LLC shall be suspended on the effective date of the Order entered in Case No. 2010-1001246, or any new case number assigned by the Registrar given the amendment adding LLC in this matter, until the Registrar receives written proof, and the Registrar approves such proof, that LLC has fully complied with the remedial work required by the Corrective Work Order and that LLC has become fully compliant with the provisions of A.R.S. § 32-1124(B). Any further denial of reasonable access by Complainants to LLC may result in excusing LLC’s performance of the required remedial work necessary to avoid the suspension of its contracting license. If LLC fully complies with the Registrar’s Corrective Work Order and the provisions of A.R.S. § 32-1124(B), and the Registrar approves proof of such compliance, on or before the effective date of the Order entered in Case No. 2010-1001246, or any new case number assigned by the Registrar given the amendment adding LLC in this matter, then the above license suspension shall not take place and the disciplinary action against LLC shall be closed. 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 40 days from the date of that certification.

Done this day, August 18, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] For administrative convenience, the above caption has not been changed to reflect the said amendments since the Registrar may elect to assign a new case number for the disciplinary action involving Cochise County Roofing and Referrals, L.L.C.

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