ALJDEC decisions subject to certification as final

2012A-1574-ROC · Registrar of Contractors · 2013-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 26, 2012, at 8:00 a.m. APPEARANCES: Complainant Karrie M. Rockwell appeared on her own behalf; Respondent JLM Roofing Company Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 42.145799-R to JLM Roofing Company Inc. (“Respondent”). Respondent’s address of record is 2003 East Van Buren Street, Phoenix, Arizona 85006- 3910. The persons listed on Respondent’s license are Jerry Lee Mueller and Gary Don Goble. The Registrar received a Complaint from Karrie M. Rockwell (“Complainant”) against Respondent that set forth four specific complaints about Respondent’s replacement of the tile roof of Complainant’s house at 956 East Marconi Avenue in Phoenix, Arizona. Complainant attached to the Complaint copies of two documents: (1) Respondent’s December 20, 2010 proposal to remove existing tile, to replace the underlayment, to install new valley metal, drip edge and anti-ponding flashings, to remove and reinstall all vents and pipe flashings, to reinstall the tile, and to “[r]eplace existing broken tile, approx. 300 pieces”; and (2) Respondent’s February 14, 2011 billing invoice in the total amount of $11,419.99 for replacing the roof on Complainant’s house. Both documents showed Respondent’s name as “JLM Roofing Company, Inc. dba Littleton Roofing Co. of AZ.” John Mueller signed the billing invoice that showed the e-mail address for Respondent as [email redacted] . The Registrar assigned the Complaint to its inspector, Jim Dimond, for investigation. Complainant but not Respondent attended Inspector Dimond’s jobsite inspection. On April 19, 2012, Inspector Dimond issued a Corrective Work Order (“CWO”) that required Respondent within 15 calendar days to perform certain corrective actions, in relevant part as follows: Item 1 – Replace all broken roof tiles with new tiles as was originally agreed upon. The contract specifically calls out replacement of broken tiles. Repaired tiles are present. Contractor is to correct the condition in an appropriate manner.

Item 2 – Properly install all tiles on the roof. Tiles are over exposed. Contractor is to correct the condition in an appropriate manner.

Item 3 – Repair all leaks. There appears to be a leak condition above the master bedroom below the HVAC catwalk. Contractor is to determine the cause and correct the condition in an appropriate manner.

Item 4 – Paint the stains in the master bedroom ceiling. After correction is completed of item 3, the contractor is to correct this item in an appropriate manner.

On or about May 15, 2012, the Registrar received Complainant’s formal request for hearing because Respondent had not met the criteria outlined in the CWO. On or about May 16, 2012, Complainant sent Inspector Dimond an e-mail from Mr. Mueller that showed the company name, “Roof AZ.” Complainant noted that “[i]t appears [Respondent] may have changed their name as well.” The Registrar issued a Citation and Complaint against Respondent charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32- 1154(A)(15), and A.R.S. § 32-1154(A)(23). The Registrar sent a copy of the Citation and Complaint to Respondent at its address of record. Mr. Goble on behalf of Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and moving to dismiss the Complaint for various reasons, including Complainant’s alleged abuse of process and bad faith in filing the Complaint. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. Complainant subsequently asked the Registrar to amend the Complaint to include additional water damage to her back patio. On September 13, 2012, the Registrar issued a Notice of Amendment/Order Denying Motion to Dismiss, denying Respondent’s motion to dismiss and amending the Complaint to include water damage to Complainant’s back patio ceiling. On October 11, 2012, the Registrar issued a Notice of Hearing, setting a hearing on November 21, 2012, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. After Inspector Dimond informed the parties that he would not be available to testify at the November 21, 2012 hearing, Complainant moved to continue the hearing. On October 31, 2012, the Administrative Law Judge issued an order granting Complainant’s motion and continuing the hearing to December 26, 2012, at 8:00 a.m. The OAH’s staff sent a copy of the order to the e-mail address on Respondent’s invoice. A hearing was held on December 26, 2012. Inspector Dimond testified. Complainant testified on her own behalf and submitted nine exhibits, including one exhibit that consisted of nine photographs of the roof on her house. Respondent did not request to appear telephonically at the continued hearing. Although the start of the hearing was delayed twenty minutes to allow Respondent additional travel time, Respondent did not appear through an authorized officer, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence Inspector Dimond performed a prehearing inspection on December 21, 2012, at 4:00 p.m. Complainant’s husband attended the prehearing inspection on her behalf, but no one attended the inspection on Respondent’s behalf. Inspector Dimond testified that the United States Postal Service had returned as undeliverable the mail that the Registrar sent to Respondent at its address of record. Inspector Dimond testified that at the prehearing jobsite inspection he verified that there was evidence of water damage to the underside or “lid” of the patio cover on the back side of Complainant’s house. Inspector Dimond testified that because the taped and textured area over the east side of the lid near the arcadia door was delaminating due to a roof leak, he would have included it on the CWO. Inspector Dimond testified that although he saw quite a bit of damage to the lid over the west side of the patio, because he could not determine whether the damage was due to a roof leak, he would not have required Respondent to repair the damage as part of the CWO. Inspector Dimond testified that the HVAC catwalk at Complainant’s house created a damming condition that could lead to water intrusion and that the interior damage that he saw in the master bedroom at the prehearing jobsite inspection was consistent with a roof leak. Inspector Dimond testified that the area of the roof on the front part of the Complainant’s garage now has a solar electric system and that Complainant told him that the solar contractor repaired that part of the roof. Complainant testified that the area of the roof where the solar electric system was installed was not her primary area of concern. Complainant testified that the solar contractor had expressed concern about the age and condition of her roof and expressed disbelief when she stated that the roof had recently been substantially repaired. Complainant testified that although Respondent informed her that the style of tiles used on her roof were no longer available, the solar contractor was easily able to obtain new tiles to replace the roof tiles that were broken. Complainant testified that Mr. Goble wanted to perform the work that the CWO required under another licensed contractor’s name, but she refused. Complainant submitted license screen printouts from the Registrar’s public website for entities that appeared to be affiliated with Respondent, John Mueller, or the persons listed on Respondent’s license: (1) License Nos. C-42.279645-R and L-42.279644-C issued to Littleton Roofing Services LLC, whose qualifying party is Nathan Edward Boyer;[1] (2) License Nos. C- 42.273841-R (suspended for lack of a qualifying party on August 1, 2012) and L-42.273840-C issued to John Mueller LLC DBA: Roof AZ, whose former or current qualifying party is John Patrick Mueller; and (3) License No. K- 42.280648-D (cancelled on December 14, 2012) issued to Tops Roofing LLC, one of whose members is identified Mr. Goble’s daughter, Erica Marleasse Goble.[2] Complainant submitted and testified that she furnished to Mr. Goble and to Respondent’s attorney four estimates to repair the roof and water damage at her house: (1) A proposal from Jim Brown and Sons Roofing Company Incorporated, License No. C-42.061127-R, in the total amount of $9,900.00 to remove and replace the underlayment and three-tab shingles on the back and front sides of Complainant’s house;[3] (2) A proposal from Skytop Inc. DBA: Sunvek, License No. K-42.168508-D (“Sunvek”), in the amount of $6,422.00 to remove and replace the underlayment and to tear off and replace three-tab shingles on the north side of Complainant’s house;[4] (3) A proposal from Creative Roofing Systems Inc., License No. K-42.168841-D, in the amount of $6,575.51 to perform substantially the same work that Sunvek’s proposal described;[5] and (4) A proposal from Dynamic Building Concepts Inc., License No. B-2.093428-C,[6] in the amount of $2,013.59 to repair the water damage to the master bedroom and damage on the patio lid. Complainant testified that after she filed the Complaint with the Registrar, Mr. Goble and Respondent’s attorney informed her that Respondent had filed for protection under the United States Bankruptcy Code[7] and that Respondent had cancelled its professional errors and omissions policy two days before she filed the Complaint. Complainant testified that Mr. Goble and Respondent’s attorney stated that she would have to take pennies for her damages. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 8, 2013. Such prior License record reflects that Respondent’s License No. C-42.145799-R was suspended for lack of bond on July 18, 2012, and that one complaint was pending against Respondent’s license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[8] The Notice of Hearing that the Registrar mailed to Respondent at its address of record and the order continuing the hearing that the OAH sent to the e-mail address on Respondent’s February 14, 2011 invoice were reasonable. Respondent is deemed to have received notice of the continued hearing.[9] The administratively suspended status of Respondent’s license does not deprive Complainant of her right to prosecute her Complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint.[10] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[11] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[12] Complainant established that Respondent’s repairs to her roof and failures to repair water damage that resulted from roof leaks were deficient in the specific respects noted in CWO Item Nos. 1, 2, 3, and 4, and that the water damage to the east side of the patio lid resulted from Respondent’s unprofessional and not workmanlike repairs to her roof. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[13] Complainant also established that Respondent failed to repair CWO Item Nos. 1, 2, 3, and 4, in violation of A.R.S. § 32-1154(A)(23).[14] Complainant also established that Respondent did business under the names, “Littleton Roofing Co. of AZ” and “Roof AZ,” rather than the name shown on its License No. C-42.145799-R, in violation of A.R.S. § 32-1154(A)(15).[15] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order in this matter, Respondent JLM Roofing Company Inc.’s License No. C-42.145799-R shall be revoked. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final Order, the Registrar shall revoke Respondent’s 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 Respondent tenders payment of any outstanding prior civil penalty. 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, January 10, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] No evidence suggests that Littleton Roofing Services LLC or Mr. Boyer or permitted Respondent to use the name, “Littleton Roofing Co. of AZ,” had any involvement with John Mueller or Respondent. [2] See Complainant’s Exhibit 7. Although Mr. Goble is not listed on Tops Roofing LLC’s license on the Registrar’s public website, the website LinkedIn identifies Mr. Goble as the owner of Tops Roofing LLC. See Complainant’s Exhibit 8. [3] See Complainant’s Exhibit 1. [4] See Complainant’s Exhibit 3. [5] See Complainant’s Exhibit 4. [6] See Complainant’s Exhibit 5. Repairs to the interior of Complainant’s residence are beyond the scope of Dynamic Building Concepts Inc.’s commercial license. [7] Administrative notice is taken of entries for Respondent on the PACER Case Locator for the U.S. Bankruptcy Court for the District of Arizona. According to PACER, Respondent filed for protection under Chapter 11 of the Bankruptcy Code on February 4, 2011, in Case No. 2:11-bk-02912-CGC, but that the case was dismissed without discharge on September 14, 2011, and terminated on December 23, 2011. [8] See A.R.S. §§ 32-1151 to 32-1169. [9] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [10] See A.R.S. § 32-1154(C). That statute 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 . . . .” [11] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [12] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [13] 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.” [14] 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.” [15] A.R.S. § 32-1154(A)(15) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.”

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