ALJDEC decisions subject to certification as final

2011A-2238-ROC · Registrar of Contractors · 2011-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2011 APPEARANCES: Jesus P. Murillo appeared personally. Cactus Roofing, L.L.C. was represented by its attorney, Fidelis V. Garcia, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Cactus Roofing, L.L.C. (“Respondent”) is the holder of License No. 244602, a Class K-42 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Jesus P. Murillo (“Complainant”) hired Respondent to perform roof repairs, shed repairs, and replace an awning at his residence located at 3102 West Alvarado, Phoenix, Arizona. 3. On April 18, 2011, Complainant filed a written Complaint with the Registrar alleging the following Complaint items against Respondent: no work estimate; no roof warranties; no receipt for funds received from Complainant; unfinished work on awning; removal of unused shingles; and left wire on the roof not sealed resulting in interior damage. The Registrar designated the Complaint as Case No. 2011-2238. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Jim Dimond, performed a jobsite inspection to view the Complaint items. As a result of that inspection, Inspector Dimond issued a Corrective Work Order dated June 1, 2011, that directed Respondent to timely comply with the written directives. Inspector Dimond directed Respondent to provide Complainant with legible copies of all paperwork Respondent submitted to Complainant’s insurance carrier. Respondent was required to provide Complainant with any manufacturer’s warranty for the roof, receipts for any funds paid to Respondent by Complainant, and any unused roof shingles. Respondent was directed to complete the work on the awning. Inspector Dimond did not require any action by Respondent as to the wire not being sealed. 5. The Registrar issued a Citation and Complaint in Case No. 2011-2238 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (1), (3), namely A.A.C. R4-9-108, and (23). 6. The Registrar forwarded Case No. 2011-2238 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. Complainant’s residence sustained hail damage from a storm. 8. Complainant made a claim to his insurer for the hail damage. 9. Complainant’s insurer agreed to pay for repairs to Complainant’s roof and awning.[1] 10. Respondent submitted a written estimate to Complainant’s insurer. However, Complainant never signed a written contract or estimate with Respondent. 11. Respondent commenced work, and Complainant allowed it to do so. 12. Respondent completed the roof repair and removed the awning, but left it onsite. There is conflicting testimony about who was to remove it. 13. Respondent’s awning supplier twice attempted to deliver the custom- made replacement to Complainant, but Complainant refused delivery of it, contending that the parties did not have a contract for the awning. Therefore, Respondent is deemed not responsible for such scope of work. 14. Respondent complied with the Corrective Work Order by providing the paperwork Respondent submitted to Complainant’s insurer. 15. Respondent complied with the Corrective Work Order to provide the roof shingle manufacturer’s warranty. 16. Complainant paid Respondent with two Cashier’s Checks, copies of which were entered into evidence. There is no credible evidence that Complainant paid Respondent in cash. Therefore, Respondent is determined to have complied with the Corrective Work Order requiring Respondent to evidence the payments by Complainant to Respondent by producing the checks. 17. As to the awning issue, the evidence of record established that Complainant rejected the delivery of the custom-made replacement awning because he contends that such scope of work was not part of the parties’ agreement. Therefore, Respondent is not responsible for performing any work involving the awning pursuant to the Corrective Work Order. 18. The evidence of record established that Respondent failed to comply with the Corrective Work Order concerning the issue of unused shingles. In his Corrective Work Order, Inspector Dimond noted that “[i]t is customary for a roofing contractor to leave unused bundles [of shingles] for future use.” Instead of leaving unused bundles of shingles for Complainant’s future use, Respondent left eight bundles of mismatched shingles and charged Complainant $197.20 for the mismatched shingles. Respondent is responsible for exchanging the mismatched shingles given to Complainant and substituting them with the shingles used on the roof, in accordance with industry standards and at Respondent’s sole cost and expense. Respondent is further responsible for refunding the sum of $197.20 charged to Complainant for the mismatched shingles. 19. Respondent paid Complainant $60.00 as reimbursement for the cost Complainant paid a contractor to repair the roof wire and the damage caused by the leak. 20. The evidence of record established that Respondent did not abandon the subject project. Respondent completed its roofing work, and it was prevented from performing the awning work by Complainant. 21. At hearing Complainant raised issues about his shed. Any issues involving Complainant’s shed is determined to be outside the scope of Complainant’s Complaint and the Corrective Work Order. 22. A review of the Registrar’s official electronic licensing records reveals that Respondent’s contracting license is current. There are two open and eight resolved/settled/withdrawn complaints against Respondent’s license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction against Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (1) by abandoning the subject project, as charged in the Citation and Complaint issued by the Registrar. Respondent completed the roofing scope of work. Complainant contends that the awning scope of work was not part of the parties’ contract. Complainant prevented Respondent from completing the awning scope of work. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with Item 5 of the Corrective Work Order by not leaving unused bundles of matching shingles per industry standards. Respondent is responsible for exchanging the bundles of mismatched shingles with matching shingles per industry standard at Respondent’s sole cost and expense. In addition, Respondent is responsible for repaying Complainant the sum of $197.20 that Complainant paid for the bundles of mismatched shingles. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to comply with industry standards by leaving Complainant with bundles of mismatched shingles rather than similar shingles used on the subject project, and then charging Complainant for the mismatched shingles. 6. Pursuant to A.R.S. § 32-1156.01, Complainant established an entitlement to restitution from Respondent in the sum of $197.20. RECOMMENDED ORDER Respondent’s License No. 244602 shall be suspended on the effective date of the Order entered in Case No. 2011-2238 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has exchanged the mismatched bundles of shingles with matching bundles of shingles used on the subject project and has paid Complainant restitution in the sum of $197.20. If the Registrar receives written proof that Respondent has exchanged the mismatched bundles of shingles with matching bundles of shingles used on the subject project and has paid Complainant restitution in the sum of $197.20 on or before the effective date of the Order entered in Case No. 2011-2238, and the Registrar approves such proof of compliance with this Order, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 244602 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in this matter or the date on which the Registrar approves written proof of Respondent’s proper compliance with the terms of this Order, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2011-2238 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, November 14, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] It appears from the evidence of record that the scope of awning work requires a Class C-3 Awnings and Canopies contracting license. However, Respondent was not charged with out of scope contracting in this matter.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826