ALJDEC decisions subject to certification as final

2010A-308476084-ROC · Registrar of Contractors · 2011-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Mike Nieves, ROC Inspector William Robertson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship regarding installation of a steel roof by Respondent. As noted above, Respondent did not appear at the hearing. Therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, as well as marked Exhibits 1A, 1B, 1C, 1D, 1E, and 1F. Complainant presented evidence and testimony from the witnesses noted above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending revocation of the license. FINDINGS OF FACT 1. Respondent was the holder of license B-3.234328-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorized Respondent to perform general remodeling and repair of residential properties. James Noonan, Jr. is the company’s sole Member and Qualifying Party. The license has been revoked. 2. In September 2009, Complainant hired Respondent to remove a shingle roof and replace it with a steel roof at Complainant’s residence. In September 2010, Complainant filed a complaint with the ROC listing several problems with the roof. ROC Inspector Mike Nieves performed an onsite inspection and issued a Corrective Work Order (“CWO”) on October 19, 2010. The CWO ordered Respondent to correct the seal around the chimney and the water damage that resulted from leaking at that area. 3. Respondent did not perform any work. Complainant requested a hearing. 4. At hearing, Inspector Nieves testified in support of the CWO. 5. Complainant submitted photographic evidence showing the improperly sealed area at the chimney (no flashing or counter-flashing) and damage done to the home’s interior from a leak at the chimney.[1] The evidence also shows that there is a good chance that there is damage to the plywood under the metal roofing and perhaps the formation of mold. The chimney area of the roof should be checked for those conditions. 6. Complainant’s evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The evidence shows poor workmanship by Respondent and a failure to correct its work by complying with the CWO. These actions are violations of Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(23), and (A)(3) by way of ROC Rule A.A.C. R4-9-108. 3. A review of current ROC records shows that Respondent’s license was revoked in March 2011. Pursuant to A.R.S. § 32-1154(C), revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the ROC powerless to revoke the license in this matter. 4. Respondent’s license should be revoked in this matter. Complainant may then make a claim to the Residential Contractors’ Recovery Fund. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.234328-R, held by Premier Exteriors of Arizona LLC dba Premier Remodeling of Arizona, be revoked.

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, April 29, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits 1A through 1F. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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