ALJDEC decisions subject to certification as final

2011A-562-ROC-com · Registrar of Contractors · 2013-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: February 4, 2013 APPEARANCES: Ernest Hernandez appeared on his own behalf. Respondent The Roof Doctor LLC appeared through Richard Blunk, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 42.240969-D to The Roof Doctor LLC (“Respondent”). Ernest Hernandez (“Complainant”), the property manager, contracted with Respondent to repair the roof of a retail building with multiple bays at 5225 Highway 95, Ft. Mohave, Arizona. Respondent’s contract included a three-year guarantee against leaks. Complainant filed a Complaint to the Registrar against Respondent alleging the roof repair completed by Respondent did not cure the leaks. On February 14, 2011, Cliff Corlett, the assigned inspector, issued a Corrective Work Order that provided: The Respondent[‘]s 3-12-2010 contract appears to guarantee roof work that will seal all roof leaks. At the onsite inspection, several tenants stated there were/are numerous roof leaks still. Respondent should determine cause and correct leaks by appropriate methods. Respondent must be granted access to all of property to determine leak locations.

On June 3, 2011, the Registrar issued a Citation and Complaint that charged Respondent with possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). On September 15, 2011, after a hearing on the matter, the Registrar issued an Order finding that Respondent had violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23) and requiring Respondent to perform corrective work and pay a civil penalty of $500.00. The Registrar issued an Order Setting Compliance Hearing, providing in relevant part as follows: On September 15, 2011, the Registrar issued an Order in this matter providing that Respondent’s K-42.240969-D License would be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had fully complied with the Registrar’s Corrective Work Order. If Respondent submitted such proof to the Registrar and the Registrar approved such proof that Respondent had fully complied with the Registrar’s Corrective Work Order on or before the effective date of the Order, then Respondent’s K-42.240969-D License would not be suspended, instead, it would be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order or the date on which the Registrar accepts proof that Respondent has fully complied with the Corrective Work Order issued in this matter, whichever is later. The Order further provided that Respondent was required to pay the sum of $500.00 by way of civil penalty to the Registrar on or before the expiration of thirty (30) days from the effective date of the Order or risk the automatic revocation of its License. The Order had an effective date of October 25, 2011. On or about October 14, 2011, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that “[a]s you can see from the attached documentation from the tenants, some of these leaks are not due to the roof and the other minor leaks have been repaired.” Attached to this correspondence was documentation from several tenants stating that several leaks have been repaired, but one leak is from an air conditioner overflow pan being full of water. The Registrar treated this submission as a Notice of Compliance. On December 9, 2011, the Registrar sent a copy of Respondent’s Notice of Compliance to Complainant, providing Complainant with an opportunity to file a Response thereto. On or about December 19, 2011, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that “there has been so many leaks in the past 2 years that the tenants have gotten used to it and do not pay much attention when smaller leaks develop, [s]o in response to [Respondent’s] assertion that all leaks have been repaired, my response is that I object to [Respondent] stating that all leaks have been repaired - - not all leaks are fixed – leaks still persist . . . . And until we receive a very hard and persistent rain, only then will we know how truly the roof is fixed.” On or about December 20, 2011, Complainant submitted additional written correspondence in this matter with the Registrar providing, among other things, that Complainant is “objecting to the Respondent’s claim that all leaks have been repaired.” Complainant maintained that it has verified there to be continued water leaks from the roof in units 1-3, unit 6, units 7-8 and unit 10. On or about February 27, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent’s office manager called Complainant at the cell phone number provided by Complainant and left numerous messages. Respondent further maintained that Complainant will not respond to Respondent’s phone calls. Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Lake Havasu City area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms of the Registrar’s September 15, 2011 Order. If it is determined that Respondent failed to comply with the Registrar’s directive, Respondent’s K-42.240969-D License shall be subject to the immediate imposition of discipline.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the issue of whether Respondent had complied with the Registrar’s Order.[1] On February 4, 2013, a compliance hearing was held. Respondent presented the testimony of Richard Blunk, its Qualifying party. Complainant submitted one exhibit and testified on his own behalf. Inspector Corlett testified that he conducted a pre-hearing inspection. Inspector Corlett observed approximately 20 leaks still present throughout the building. It was noted a fire had occurred in Bay 8 in March 2012, and the roof had been repaired as a result. Therefore, Bay 8 was not included as part of the inspection. From April 2012 through September 2012, the ceiling tiles in Bays 6, 7, 9, and 10 were also replaced following the fire, so any evidence of leaks in the ceiling tiles in those bays had to have occurred after September 2012. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website as of February 25, 2013. Such prior license record reflects that on December 14, 2012, Respondent’s license was revoked due to failure to pay a civil penalty. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. The administratively revoked status of Respondent’s license does not preclude Complainant from pursuing an administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.[2] Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s Order or that Complainant failed to provide reasonable access for it to do so. See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). As the Registrar’s Order Setting Compliance Hearing informed the parties, the only issue at the compliance hearing was whether Respondent had complied with the Registrar’s Order. Respondent argued it had completed the required corrective work and had received acknowledgements from the individual tenants indicating the leaks had been repaired. Respondent pointed to the repaired roof over Bay 8 as negating any further responsibility given other contractors worked on the roof. Respondent failed to prove by a preponderance of the evidence that it complied with the Registrar’s Order or that Complainant failed to provide reasonable access for it to do so. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately revoke Respondent The Roof Doctor LLC's License No. K-42.240969- D. 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 the date of that certification. Done this day, February 25, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Inspector Corlett testified this hearing was delayed because Complainant’s written correspondence indicating the leaks had not been repaired were misplaced. [2] See A.R.S. § 32-1154(C), which provides that “[t]he 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 . . . .”

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