ALJDEC decisions subject to certification as final

2012A-4195-ROC · Registrar of Contractors · 2013-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 2013, at 8:00 a.m. APPEARANCES: Alma Patricia Aguirre (hereinafter “Ms. Aguirre” or “Complainant”) appeared on her own behalf. PureFun Systems LLC dba Play and Leisure Systems (hereinafter “Purefun” or “Respondent”) was represented by its attorney, James B. Rolle III, Esq., the Law Offices of James B. Rolle. A Spanish/English speaking interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Purefun is the holder of License No. KB-1.261185-D issued by the Registrar of Contractors. Ms. Aguirre is the owner of a residence located at 4508 N. 2nd Drive, Phoenix, Arizona 85018 (“the residence”). Ms. Aguirre purchased the residence from Mary Virginia Makaus (hereinafter “Ms. Makaus”). On or about June 17, 2011, before Ms. Aguirre purchased the residence, Purefun performed roofing work on the residence for the sum of $6,599.71. Purefun was paid in full through Ms. Makaus’ insurance company for the roofing work. After moving into the residence Ms. Aguirre noticed that the new roof leaked and she promptly notified Purefun of the leaking problem. When Purefun failed to comply with Ms. Aguirre’s repeated requests to fix her leaking roof, Ms. Aguirre filed a formal Complaint against Purefun with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mark Alyea (hereinafter “Inspector Alyea”), conducted an onsite inspection. Inspector Alyea issued a written Corrective Work Order on September 28, 2012, directing Purefun to perform designated corrective work on Complainant’s roof. The Corrective Work Order provided, in pertinent part, as follows: 1. There is a section of roll roofing at the carport roof that is not flush with the other roofing material. This is on the north side of the flat garage roof. 2. There are exposed roof nails on the front east side of the roof just below the [D]utch gable. 3. There are missing shingles at the south east hip, this is in the middle of the hip. 4. There are exposed roof nails and missing shingles at the south [D]utch gable. 5. Missing shingles at the north side of the A/C unit. 6. There are exposed roof staples under the [D]utch barge overhang at the north side of the roof. 7. Exposed roof nails at the north east hip at and under the barge at the [D]utch gable. 8. There are exposed nails at the east side of the roof at the north valley. 9. Three quarters up the north valley, there are three shingles that need to be replaced. This is on the north side of the valley. 10. The flashing at the east [D]utch gable is not complete. 11. Shingles are missing and the flashing in not complete at the south [D]utch gable.

The parties were unable to resolve their differences and on or about October 14, 2013, Ms. Aguirre filed a request that a Citation be issued against License No. KB-1.261185-D of Purefun. The Registrar of Contractors then issued a formal Citation and Complaint charging Purefun with possible violations of A.R.S. § 32-1154(A)(1),[1] A.R.S. § 32-1154(A)(3),[2] namely, A.A.C. R4-9-108,[3] and A.R.S. § 32- 1154(A)(23).[4] Testimony of Registrar Inspector Mark Alyea Inspector Alyea testified that Purefun did not appear at the first onsite inspection. Inspector Alyea stated that he physically inspected the roof and observed that portions of the shingled roofing failed to comply with applicable industry standards. Inspector Alyea testified that he observed that portions of the rolled roofing were badly bubbled. Inspector Alyea stated that he issued a Corrective Work Order directing Purefun to properly correct Ms. Aguirre’s roof. Inspector Alyea testified that he performed a pre-hearing inspection at Ms. Aguirre’s residence on October 4, 2013. Inspector Alyea stated that no corrective work had been performed on Ms. Aguirre’s roof. Inspector Alyea testified that Purefun’s representative acknowledged that no corrective work had been performed on Ms. Aguirre’s roof. Inspector Alyea acknowledged that the workmanship deficiencies on the shingled portion of the roof were not major. Inspector Alyea testified that the shingled portion of Ms. Aguirre’s roof failed to comply with applicable industry standards and required proper correction. Inspector Alyea stated that the rolled roofing over the carport was leaking and required proper correction. Inspector Alyea testified that he examined a copy of Purefun’s construction agreement on October 4, 2013. Inspector Alyea stated that the construction agreement was for roofing work on the shingled portion of Ms. Aguirre’s roof. Inspector Alyea testified that the construction agreement did not require Purefun to perform any work on the rolled portion of Ms. Aguirre’s roof. Inspector Alyea’s testimony is found to be credible. Testimony of Alma Patricia Aguirre Ms. Aguirre testified that she had purchased the residence in a “short sale” on the condition that the roof on the residence be repaired. Ms. Aguirre stated that the roof over her carport was leaking. Ms. Aguirre testified that her carport was being damaged by the leaking roof and that she wanted the carport roof properly corrected. Ms. Aguirre testified that Purefun failed to respond to the Corrective Work Order and that no corrective action had been performed on her roof. Ms. Aguirre denied that she had denied access to Purefun. Ms. Aguirre acknowledged that on or about October 4, 2013, after the pre-hearing inspection, she informed Purefun that “it would not be a good idea” to go on her roof until after she spoke with Inspector Alyea. Ms. Aguirre stated that she spoke with Inspector Alyea and was informed that “it was up to her.” Ms. Aguirre testified that Purefun did not call back and request access to her roof. Testimony of Gerald Wayne Imlay Gerald Wayne Imlay (hereinafter “Mr. Imlay”) testified that he was a member of Purefun when Purefun performed the roofing work on Ms. Aguirre’s residence. Mr. Imlay stated that he was the managing member for Purefun. Mr. Imlay testified that the roofing work on the residence was performed for an insurance carrier, identified as Stacy Lloyd, who was representing the property owner, Ms. Makaus.[5] Mr. Imlay testified that Purefun did not have a construction contract with Ms. Aguirre. Mr. Imlay acknowledged that Ms. Aguirre “was around the house” while the roofing work was being performed. Mr. Imlay testified that Purefun did not perform any rolled roofing work at Ms. Aguirre’s residence. Mr. Imlay stated the performance of rolled roofing work was not within the scope of Purefun’s construction agreement.[6] Mr. Imlay testified that the insurance company would not pay for any work on the rolled roofing portion of the residence. Mr. Imlay acknowledged that the insurance company fully paid Purefun for the roofing work that was performed on the shingled portion of the roof on Ms. Aguirre’s residence. Mr. Imlay testified that the required corrective action on the shingled portion of Ms. Aguirre’s roof were minor in nature and should take one worker no more than one and one-half hours to correct. Mr. Imlay testified that Ms. Aguirre had denied him access to go on roof and inspect it on October 4, 2013, because Purefun’s contractor’s license had been canceled. Mr. Imlay acknowledged that he informed Inspector Alyea that Purefun had performed no corrective work on Ms. Aguirre’s roof. Mr. Imlay stated that he considered the list of corrective items in the Corrective Work Order to be “suspect.” Mr. Imlay testified that based on his observation of the roof from the ground he could observe no deficiencies in the shingled portion of Ms. Aguirre’s roof. Mr. Imlay stated that Ms. Aguirre would not allow him onto her roof to perform a visual inspection after the October 4, 2013 pre- hearing inspection. Mr. Imlay testified that he wanted to get on the roof so that he could photograph each item on the Corrective Work Order. Mr. Imlay stated that Ms. Aguirre informed him that Inspector Alyea had specifically informed her not to allow Mr. Imlay onto her roof. Mr. Imlay testified that Purefun is no longer operating as a licensed contractor. Mr. Imlay stated that he is now the manager of “PLS Construction” and that PLS Construction was properly licensed by the Registrar of Contractors to perform any corrective work on Ms. Aguirre’s roof.[7] Mr. Imlay testified that he was willing to perform any necessary corrective work on Ms. Aguirre’s roof. Administrative notice is taken of Purefun’s prior license record as reflected on the Registrar of Contractors’ public website on October 16, 2013. Such prior license record reflects that License No. KB-1.261185-D of Purefun was canceled on June 24, 2012. License No. KB-1.261185-D of Purefun had been suspended for lack of bond from November 24, 2011, through December 6, 2011. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. A Corrective Work Order was issued in this matter on September 28, 2012. Purefun performed no corrective action in response to the Corrective Work Order and did not attempt to examine Ms. Aguirre’s roof until after the pre-hearing inspection on October 4, 2013. This Tribunal concludes that Purefun violated the charged provision of A.R.S. § 32-1154(A)(1). 4. There was no credible evidence that Purefun performed, or was contractually required to perform, any roofing work on the rolled roofing portion of Ms. Aguirre’s residence. Consequently, there is no finding that Purefun is responsible for correcting the rolled roofing above Ms. Aguirre’s carport. 5. There was no dispute that Purefun did install the shingled roofing on Ms. Aguirre’s roof. There are exposed roof nails and staples on the shingled roofing. There are missing shingles in the shingled roofing. The flashing on the shingled portion of the roof is not complete. The roofing work performed by Purefun on the shingled portion of Ms. Aguirre’s roof does not comply with applicable workmanship and industry standards. This Tribunal concludes that Purefun violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. 6. Purefun failed to respond to the terms of the Corrective Work Order and failed to perform any corrective action on the shingled portion of Ms. Aguirre’s roof. This Tribunal concludes that Purefun violated the charged provision of A.R.S. § 32-1154(A)(23). 7. Ms. Aguirre suffered material loss or injury as result of Purefun’s poor workmanship and was entitled to file a complaint against Purefun with the Registrar of Contractors.[8] RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 1.261185-D of Purefun shall be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that Purefun has caused a properly licensed contractor to fully comply with item numbers 2 through 11 of the Corrective Work Order issued in this matter at Purefun’s sole expense. It is further recommended that if on or before the effective date of this Order, Purefun causes a properly licensed contractor to fully accomplish the correction of item numbers 2 through 11 of the Corrective Work Order, then the above provided License revocation shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Purefun pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Purefun to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Purefun’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Purefun, 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 this 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 the certification

Done this day, October 18, 2013.

/s/ M. Douglas 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, abandonment 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, violation of any rule adopted by the registrar. [3] A.A.C. R4-9-108 provides, in pertinent part, as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[4] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. [5] See Exhibit No. R-4 (6/8/11 Agreement). [6] See Exhibit No. R-4 (6/8/11 Agreement, page 2). [7] PLS Construction LLC DBA: PFS Contracting ROC License No. KB-1.279640- D. Administrative notice is taken of PLS Construction LLC’s license record as reflected on the Registrar of Contractors’ public website on October 16, 2013. Such prior license record reflects that License No. KB-1.279640-D of PLS Construction LLC is current. [8] See RBW Consultants, Inc. v. Sooman, No 1 CA-CV 12-0286 (Ariz. Ct. App. Aug. 6, 2013).

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