ALJDEC decisions subject to certification as final

2013A-3437-ROC · Registrar of Contractors · 2014-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2014

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier; Respondent was represented by its President and Qualifying Party Marcos Gomez, Sr.

WITNESSES: Mike Nieves, ROC Inspector Jose Gill, ROC Staff Attorney Marcos Gomez, Sr.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This disciplinary action is brought against Respondent based on a complaint filed by William and Thela Murphy about roofing work done by Respondent at their house. The Citation and Notice of Hearing issued by the Registrar of Contractors (“Registrar” or “ROC”) alleges violations of poor workmanship, failure to use a contract that meets statutory minimums, and contracting while the license was suspended. Respondent does not seriously dispute the factual bases for the allegations, but does not admit violations. Respondent wanted a hearing to add information to the record. This tribunal entered the ROC’s marked Exhibits 1 through 8 into the record. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations and recommending discipline of the license. FINDINGS OF FACT 1. Respondent was the holder of License No. B.202628-R, a general residential contractor’s license issued by the ROC.[1] It authorized Respondent to perform residential construction and remodeling and was the license by which Respondent performed the work at issue in this complaint. Marcos Gomez, Sr. (“Gomez”) was the Qualifying Party on the license. The license was issued in December 2004. It was automatically suspended for non-renewal on January 1, 2011, and expired exactly one year later. 2. Gomez currently holds a license as a sole proprietorship under the name Residential Specialists AZ, ROC License No. B.273121-R. This license is also a general residential contractor’s license issued by the ROC. It was issued on May 20, 2011 and is currently active.[2] 3. From January 1, 2011, to May 20, 2011, there was no active license under which Respondent or Gomez could operate as a licensed contractor in the state of Arizona. 4. On or about January 26, 2011, Respondent entered into a contract with William and Thela Murphy (hereinafter “Murphys”) for roof repairs costing over $5,000.00.[3] The contract displayed Respondent’s ROC license number.[4] The contract did not inform the Murphys about their rights to file a complaint with the ROC should they have a dispute. On a document describing the Murphys’ warranty for the work, the ROC is mentioned when it is stated that Respondent agrees to abide by any written orders from the ROC.[5] It does not inform the Murphys about a right to file a complaint with the ROC. 5. Respondent performed the roofing work and was paid in full. The roof began leaking shortly thereafter, which soon became a chronic problem. Respondent was responsive and made numerous attempts to repair the leak but was unsuccessful. Respondent made repair attempts in January 2011, on May 1, 2011; on July 7, 2011; on July 15, 2011; and in March 2012. The repairs did not stop the leaking. Each time the roof leaked, Respondent repaired the interior damage that was caused. In November 2012, the roof leaked again. The Murphys’ patience with Respondent had run out, so they hired a new contractor[6] and filed the present ROC complaint against Respondent. 6. ROC Inspector Mike Nieves testified at the hearing and verified the facts above. 7. Gomez testified that he was unaware of Respondent’s license suspension until February 2011. The evidence shows that the license went into suspension automatically because it was not renewed by December 31, 2010. Respondent is required to maintain an active license to perform work and is on notice about the two-year renewal period for a license. The evidence shows that an application for the sole proprietorship was filed with the ROC on April 20, 2011. Gomez testified that this change of business entity was due to a tax liability problem that Respondent had. 8. In his answer to the citation issued by the ROC, Gomez stated that the license he operated under for the Murphy contract was License No. B.273121-R, the sole proprietorship license. However, that license was not effective until May 20, 2011, nor did it appear on the contract paperwork. Indeed, the application for that license was not filed until April 2011. 9. The evidence shows that Respondent was responsive to the Murphys’ complaints and did not try to avoid responsibility for fixing the roof leak. But, Respondent was not competent to solve the problem of the leak, even after several tries. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[7] Further, the standard of proof at hearing is by preponderance of the evidence.[8] Therefore, the ROC bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Notice of Hearing.[9] The ROC has met that burden. 2. The Citation and Notice of Hearing alleges violations of A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship), A.R.S. § 32-1154(A)(13) (prohibiting failure to comply with ROC statutes) regarding minimum elements of contracts as prescribed in A.R.S. § 32- 1158(B), and A.R.S. § 32-1154(A)(18) (prohibiting working while a license is suspended). The evidence supports these allegations. 3. The evidence clearly shows that Respondent violated A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108, for poor workmanship, especially after numerous attempts to fix the leak failed. 5. The evidence also clearly shows violation of A.R.S. § 32- 1154(A)(13) regarding required minimum contract elements. Respondent’s contract failed to include a notification that the property owner may file a complaint with the ROC. That requirement is found in A.R.S. § 32- 1158(B)(9). 6. Finally, A.R.S. § 32-1154 (A)(18) prohibits contracting while a license is suspended. Respondent violated this provision in January 2011 and early May 2011. Gomez should have renewed the license or refrained from taking the job in January 2011. 7. As noted above, Respondent’s license is expired. Pursuant to A.R.S. § 32-1154(C), expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license in this matter. 8. The ROC is authorized to impose a civil penalty of up to $1,000.00 for each violation of A.R.S. § 32-1154(A)(18).[10] 9. The appropriate discipline for this matter is revocation of the license and a civil penalty of $1,000.00. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.202628-R, held by Residential Specialists of Arizona RSA, Inc. be revoked beginning the effective date of the Registrar’s Order. IT IS FURTHER RECOMMENDED that, along with the revocation above, Residential Specialists of Arizona RSA, Inc. pay a civil penalty of $1,000.00 to the ROC pursuant to A.R.S. §32-1154(E). Failure to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the ROC Order entered in this matter, shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, May 6, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of the license history information reflected on the ROC’s public website on May 6, 2014. All findings regarding license information and history in this Recommended Decision are based on the website information. [2] See Exhibit 7. [3] Exhibit 4. [4] Id. [5] Exhibit 4. [6] Exhibit 5. [7] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [8] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [9] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [10] A.R.S. § 32-1154(E).

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