ALJDEC decisions subject to certification as final

2011A-4028-ROC · Registrar of Contractors · 2012-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2012 APPEARANCES: Janina A. Hogans appeared personally. Robert James Milford appeared personally. 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. Robert James Milford, doing business as R J M Const. (“Respondent”), is the holder of License No. 097482, a Class B-3 contracting license issued by the Registrar of Contractors (“Registrar”). 2. In early 2011, Respondent contracted with Janina Hogans (“Complainant”) on a project involving roof work, painting, gutters, down spouts, and tubular skylights at Complainant’s residence located at 4617 W. Echo Lane, Glendale, Arizona. 3. On July 12, 2011, Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2011-4028. 4. The Registrar issued a Citation and Complaint in Case No. 2011-4028 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, (13), namely A.R.S. § 32-1124(B), and (23). 5. The Registrar forwarded Case No. 2011-4028 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar’s assigned inspector, Jim Hennessey, performed two jobsite inspections on August 11, 2011, and August 12, 2011, to view Respondent’s alleged deficient workmanship. As a result of those inspections, Inspector Hennessey issued a Corrective Work Order dated August 18, 2011, that addressed each of the Complaint items and punch list items. Respondent was required to perform specified remedial work to Complainant’s pitched roof, down spouts, and skylights. Per a jobsite agreement, Respondent agreed to provide Complainant with warranty documentation for the roof shingles and paint used by Respondent on the project. Respondent was found not to be responsible for the following items: 1) the television dish and existing materials; 2) the removal of two existing roof turbine vents and the replacement of them; 3) chimney flashing; and, 4) removal of all roofing scraps, nails, and staples from Complainant’s yard. 7. On January 10, 2012, Inspector Hennessey performed a pre-hearing jobsite inspection to view the items required to be remedied as required by the Corrective Work Order. 8. Respondent did not remove the antenna mounting brackets on Complainant’s pitched roof, as required by the Corrective Work Order. 9. Respondent removed the fascia from the back porch. However, some of Respondent’s remedial work is determined not to meet workmanship standards. For example, there are miter cuts on fascia that do not abut properly. 10. Respondent removed and replaced all T-Tops and metal flashing. However, the paint used by Respondent does not match the roof. 11. Respondent failed to remove the existing roofing down to the decking in the southeast corner of Complainant’s back porch and prepare the deck to provide an adequate substrate for the roofing materials. 12. Respondent properly repaired Complainant’s gutters and down spouts. 13. Respondent failed to clean Complainant’s tubular skylights. There are still insects inside them. 14. At the hearing, Inspector Hennessey testified about other deficiencies in Respondent’s workmanship in making his repairs. For example, at the southeast corner of Complainant’s patio, there are two or three areas of patches that have not been properly sealed. There are flashing nails that need to be sealed. Respondent removed two screens to perform repairs to fascia, but one screen was replaced without a screw and with a tear. Respondent also left residue on a planter from cleaning paintbrushes. Respondent is responsible for performing all necessary remedial work to its repairs necessary to meet workmanship standards. 15. Respondent furnished to Complainant the manufacturer’s warranty information for the roof shingles and paint used on the subject project. 16. Respondent failed to properly list its contracting license number, including using the prefix “ROC,” on documents as required by statute. 17. A review of the Registrar’s website on February 14, 2012, revealed that Respondent’s License No. 097482 is current. There are two open complaints and one resolved/settled/withdrawn complaint against Respondent’s license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over 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. 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. Respondent’s deficient workmanship is outlined in the above-provided Findings of Fact. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), namely A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to properly list his contracting license number, including the prefix “ROC,” on documentation such as the parties’ contract and invoices. 5. 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 the Registrar’s Corrective Work Order that required Respondent to perform remedial repairs to his deficient workmanship. RECOMMENDED ORDER Respondent’s License No. 097482 shall be suspended on the effective date of the Order entered in Case No. 2011-4028 until Respondent provides the Registrar with written proof, and the Registrar approves such proof, that Respondent has fully complied with the terms of the Corrective Work Order, that all of Respondent’s remedial work performed pursuant to the Corrective Work Order meets workmanship standards, and that Respondent has become fully compliant with the requirements of A.R.S. § 32-1124(B). If Respondent provides the Registrar with written proof that he has fully complied with the terms of the Corrective Work Order, that all of Respondent’s remedial work meets workmanship standards, and that Respondent has become fully compliant with the requirements of A.R.S. § 32-1124(B), on or before the effective date of the Order entered in Case No. 2011-4028, and the Registrar approves proof of such compliance, then the above- provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 2011-4028 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 2011-4028 or the date on which the Registrar approves proof of Respondent’s compliance with the terms of this Order, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $500.00 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. 2011-4028 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, February 14, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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