ALJDEC decisions subject to certification as final

2011A-5984-ROC · Registrar of Contractors · 2012-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: November 15, 2012, at 8:00 a.m. APPEARANCES: Complainant Yuri Andrade appeared on her own behalf; Respondent Built By Dan LLC appeared through Joel Borsenik, its project manager. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 7.246869-D for dual carpentry to Built By Dan LLC (“Respondent”). Yuri Andrade filed a Complaint against Respondent with the Registrar regarding its poor workmanship and failure to complete the new roof it contracted to install on Complainant’s house at 3637 West Dahlia Drive in Phoenix, Arizona after the roof was damaged by hail. The Complaint was assigned to the Registrar’s inspector, Beau Cruz, for investigation. Inspector Cruz sent a letter to Respondent warning that it may be contracting beyond the scope of its license, in relevant part as follows: Our records indicate you have a current class K-7 CARPENTRY license. However, we have information indicating you are performing or offering to perform work which would be covered under the scope of a class K-42 ROOFING license regarding roofing work performed at 3637 W Dahlia Dr Phoenix, AZ 85029- 2122.

Subsequently, the matter was reassigned to the Registrar’s inspector, James Hennessy, for further investigation. Inspector Hennessy performed an onsite inspection and on February 8, 2012, issued a Corrective Work Order that required Respondent to perform certain corrective action with fifteen calendar days, in relevant part as follows: NOTE this contractor has a C-7 [sic] carpentry license and can not do corrections in this CWO; therefore the contractor is to correct using properly licensed contractor(s) in the appropriate manner.

The following complaint items were not completed as per contract and the work that was done in the opinion of this inspector does not meet Industry and/or ROC workmanship standards. Therefore the contractor is to correct using a [properly] licensed contractor(s) by the appropriate manner as per terms [and conditions] of the contract. 1. Project not finished. A. West side cover not finished. The roof over the west storage area (14’x8’) was not [finished] and can see some of the OSB and not covered with torch down. B. Outside room roof not finished. The roof has some felt down but there are some areas that the felt is not covering the roof and apparent[ly] will leak no need to test. C. Back of house ridge running north and south not capped. It appears that there is no ridge cap as should be D. All metal T-tops and vent flashing not installed new as per contract. E. Back patio cover not completed. Appears some [rolled] roofing and OSB showing in most of roof, contract states torch down not installed. F. Fascia on the west side of house (14’x8’) cover not replaced rotten on East end. Contract states to replace damaged fascias.

2. Roof leaks East outside room, and roof not finished. Contractor is to correct using [a] properly licensed contractor by the appropriate manner.

3. Left nails, staples and trash on the roof. Contractor is to correct using a properly licensed contractor by the appropriate manner.

The [following] items were added to the complaint in the [absence] of the contractor.

4. CTR charged $475.00 dollars for the trash dumpster and did not have one. This item this inspector could not verify at the time of this jobsite inspection. Therefore there is no action required [by] the contractor at this time.

5. Nails protruding through the roof and unsafe for the satellite dish workers to install wiring for dish. There were no nail[s] protruding through the roof and the H/O stated that was corrected prior to the Jobsite inspection by others. Therefore there is no action required of the contractor at this time.

6. No Power in East outside room because of leak. Contractor is to correct by appropriate mean[s] using a properly license[d] contractor.

The following complaint items were viewed by this inspector not to meet Industry or ROC workmanship standards such as R-4-9-108. Therefore the contractor is to correct using a properly licensed contractor(s) by the appropriate manner.

7. One asphalt tile missing at the front East side

8. There are two asphalt shingles sticking up on the roof at the front of the house, and should lay flat on the roof.

9. Staples show through the plywood in the front of the house at carport in various areas. This does not meet minimum workman ship standards.

10. If project not completed soon the Mortgage Company stated that the remaining money available for the project will no longer be available to complete the project.

The contractor is to complete project as per terms and conditions of contract using properly licensed contractor(s) by the appropriate manner.

After Complainant requested a hearing, the Registrar issued a Citation and Complaint that charged Respondent with possible violations of A.R.S. § 32- 1154(A)(1),[1] A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[2] A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158,[3] A.R.S. § 32-1154(A)(17),[4] and A.R.S. § 32-1154(A)(23).[5] After Respondent failed to file a timely written answer to the Citation and Complaint, the Registrar issued a Default Decision and Order finding that pursuant to A.R.S. § 32-1155(B), Respondent’s failure to answer was deemed an admission of the charges contained in the Citation and Complaint. The Registrar issued an Order Setting Compliance Hearing that provided in relevant part as follows: On May 29, 2012, the Registrar issued a Default Decision and Order in this matter providing that Respondent’s K-7.246869- D License would be suspended on the effective date of the Order and remain suspended until the Registrar received proof that Respondent had appropriately rectified the corrective work involved and detailed in the Complaint and the Corrective Work Order. If Respondent properly corrected the specified items on or before the effective date of the Default Decision and Order, then Respondent’s K-7.246869-D License would not be suspended, but instead Respondent’s K-7.246869-D License would be placed on disciplinary probation for a period of 90 days. The Default Decision and Order further required Respondent pay a $500.00 civil penalty to the Registrar on or before the expiration of thirty (30) days after the effective date of the Default Decision and Order or risk the revocation of its License. The effective date of the Default Decision and Order was July 8, 2012.

On or about July 9, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that “[t]his letter is to serve as a notice to the Registrar of Contractors that the repairs have been completed by Jack The Roofer AZ ROC#226406.” The Registrar treated this submission as a Notice of Compliance.

On or about August 2, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Respondent “has not completed anything regarding [Complainant’s] case.” Complainant further provided that [she] tried to obtain estimates from three contractors to complete the job, but all three refused to provide estimates for completion because they maintained that the work needed to be torn down and redone.

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the normal course of docketing in the Phoenix area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has complied with the terms of the Registrar’s May 29, 2012 Default Decision and Order.

If it is determined that Respondent failed to comply with the terms of the Registrar’s May 29, 2012 Default Decision and Order, Respondent’s K-7.246869-D License shall be subject to the immediate imposition of discipline.

If it is determined that Respondent fully complied with the terms of the Registrar’s May 29, 2012 Default Decision and Order, and all work performed meets minimum workmanship standards, Respondent’s K-7.246869-D License shall not be suspended, but instead, be placed on disciplinary probation for a period of 90 days.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

Respondent is reminded that it must pay the outstanding $500.00 civil penalty assessed by the Registrar in its May 29, 2012 Default Decision and Order. If the Registrar does not receive such payment within ten (10) days of the date of this Order, the Registrar shall revoke Respondent’s K-7.246869-D License in accordance with the terms of the May 29, 2012 Default Decision and Order.

Note: Complainant is not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it fully complied with the terms of the May 29, 2012 Default Decision and Order.

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 Default Decision and Order. On November 15, 2012, a compliance hearing was held. Because Inspector Hennessy had retired from state service, the Registrar’s inspector, Jim Dimond, conducted a compliance inspection and testified about his opinions. Complainant testified. Respondent’s project manager, Joel Borsenik, testified. Inspector Dimond performed a compliance inspection on November 14, 2012, at 4:00 p.m. Complainant and her fiancé, Aaron Ramirez, attended the compliance inspection. Respondent did not attend the compliance inspection. Inspector Dimond testified that numerous repairs were not complete, including the west side cover (CWO Item 1-A), the cap on the ridge at the back of the house (CWO Item 1-C), the metal T-tops and vent flashing (CWO 1- D), and 14’ to 18’ of rotten fascia on the east end (CWO 1-F). Inspector Dimond testified that the torch down roofing on the outside room roof (CWO Item 1-B) and back patio (CWO Item 1-E) was completed, but that the work did not meet the Registrar’s standards because roofing materials were installed piecemeal in beige, white, and burgundy, rather than a uniform color. Inspector Dimond testified that he saw water staining in the interior of the east outside room that appeared to be new (CWO Item 2). Inspector Dimond testified that the asphalt tile was still missing at the front east side (CWO Item 7). Inspector Dimond testified that the shingles were not offset the 5/8” that the manufacturer’s specifications required, and that some shingles were offset 2-3/4” (CWO Item 8). Inspector Dimond testified that there was not enough slope on the front porch for shingles and that the air conditioner was not properly flashed. Mr. Borsenik testified that Respondent hired and paid in full Jack The Roofer Inc., License No. K-42.226406-D (“Jack The Roofer”), to work with the home owner directly to perform the work that the CWO required. Mr. Borsenik testified that Respondent relied upon Jack The Roofer’s expertise. Complainant testified that she did not know who Jack The Roofer was and that the only person she ever saw working on her house was “Mr. Joe” (Mr. Borsenik). Complainant acknowledged that someone attempted to perform the repairs when she was not home. Mr. Borsenik testified that Respondent repaired the framing for the patio at its own expense of approximately $1,200.00 because the patio was not safe. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on December 3, 2012, Respondent’s license was current and two complaints were pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[6] Respondent bears the burden of proof to establish by a preponderance of the evidence that it complied with the Registrar’s Default Decision and Order or that Complainant failed to provide reasonable access for it to do so.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] Respondent did not present any evidence to establish that Complainant failed to provide reasonable access to allow Respondent or Jack the Roofer to comply with the CWO or the Default Decision and Order. Because Respondent did not establish that the contractor it hired to perform the work that the CWO required, Jack The Roofer, was complete, professional, or workmanlike, Respondent did not establish that it complied with the Registrar’s Default Decision and Order. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately suspend Respondent Built By Dan LLC’s License No. K-7.246869-D until it pays Complainant a sufficient sum of money in certified funds to allow her to hire appropriately licensed contractor(s) of her choice to repair and/or to complete the roof on her house and to repair the water damage to the interior of the east outside room. It is further recommended that if Respondent provides written proof, and the Registrar accepts such proof, that Respondent has paid Complainant a sufficient sum of money in certified funds to allow her to hire appropriately licensed contractor(s) of her choice to repair and/or to complete the roof on her house and to repair the water damage to the interior of the east outside room, the Registrar may lift the disciplinary suspension and close the Complaint in Case No. 2011-5984. It is further recommended that if the Registrar accepts Respondent’s notice of compliance and lifts the disciplinary suspension, Respondent’s Class K-7 license be placed on disciplinary probation for a period of ninety (90) days, commencing on the date that the Registrar lifts the disciplinary suspension. 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 five days from the date of that certification. Done this day, December 3, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” The specific statute charged, A.R.S. § 32-1158(B), provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and include the following minimum terms:

1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . [4] A.R.S. § 32-1154(A)(17) includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [5] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [6] See A.R.S. § 32-1101 et seq. [7] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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