ALJDEC decisions subject to certification as final

2014A-2449-ROC · Registrar of Contractors · 2014-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (“the Registrar”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General; Tuccino Enterprises Inc. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedural Background 1. Respondent holds Registrar-issued License No. B-173302-R. Respondent’s address of record is 27847 N. 78th Street, Scottsdale, Arizona 85266-9233. 2. On August 25, 2014, the Registrar on its own motion issued a Citation and Notice of Hearing against Respondent’s License No. B- 173302-R, setting an evidentiary hearing on October 17, 2014, at 8:00 a.m. before the Office of Administrative Hearings (“OAH”), an independent state agency. The Citation and Notice of Hearing was sent to Respondent at its address of record. 3. The Citation and Notice of Hearing charged Respondent with having committed acts that provided grounds to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(2), A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B), A.R.S. § 32-1154(A)(20), and A.R.S. § 32- 1154(A)(22). 4. An attorney filed a timely written answer to the Citation and Notice of Hearing on Respondent’s behalf. The attorney later withdrew from representing Respondent. 5. A hearing was held on October 17, 2014. The Registrar submitted nine exhibits and presented the testimony of two witnesses: (1) Jim Dimond, an Investigator assigned to the Registrar’s Prescott office; and (2) Adam Stafford, the Registrar’s Assistant Chief Counsel. 6. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed more than fifteen minutes to allow Respondent additional travel time and did not conclude until approximately 9:00 a.m., Respondent did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence 7. On or about June 20, 2013, Paul D. Anderson and Deborah A. Anderson filed a complaint with the Registrar alleging that Respondent had used the wrong product to repair the domed roof of their residence located at 170 Little Elf Drive, Sedona, Arizona 86336, and that as a result, the roof leaked and possibly could not be repaired.[1] 8. Mr. and Mrs. Anderson attached to their complaint a copy of Respondent’s contract to repair their domed roof with a product called Senergy for a total contract price of $29,820.00.[2] The contract did not contain an estimated completion date, did not apprise Mr. and Mrs. Anderson of their right to file a complaint with the Registrar for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and did not provide the Registrar’s telephone number or website address. 9. The Registrar designated Mr. and Mrs. Anderson’s complaint as Case No. 2013-2847 and assigned it to Investigator Rick Emry of the Registrar’s Flagstaff office for investigation. 10. On June 24, 2013, Investigator Emry sent a letter to Respondent informing it that the Registrar had received information that its contract may not comply with A.R.S. § 32-1158.[3] 11. Case No. 2013-2847 was subsequently reassigned to Investigator Dimond. Investigator Dimond performed a jobsite inspection and on January 17, 2014, issued a Corrective Work Order that directed Respondent within 15 calendar days to make certain repairs, in relevant part as follows: Item of complaint:

The contractor installed a stucco product as a roofing system that was never intended to be used as a roofing system. As a result, the installation has cracked resulting in several areas of damage due to water intrusion into the structure. This structure is a concrete dome home.

Investigator finding:

Investigation has revealed that the Senergy product used is not designed to be a roofing system per the manufacturer and the stucco itself is not installed in accordance with specifications.

The product, as installed, is not warrantable by the manufacturer, per the manufacturer.

The contractor shall remove the stucco roof installation to the substrate and install an appropriate roofing system to the structure.

Upon completion of an appropriate roofing system installation, the respondent shall also correct the interior water damage in an appropriate manner.[4]

12. Investigator Dimond testified that at his jobsite inspection, he observed paint that was peeling and a black mold-like substance due to water intrusion into the interior of the dome house. The exterior of Mr. and Mrs. Anderson’s roof had numerous cracks, some of which their handyman had caulked. 13. Investigator Dimond testified that he contacted the manufacturer of the Senergy product, BASF, and verified that it was only intended to be used on walls and other vertical surfaces, not as a roofing system.[5] 14. Investigator Dimond testified that in addition, Respondent installed the Senergy product on Mr. and Mrs. Anderson’s roof without expansion joints, contrary to the manufacturer’s specifications. Investigator Dimond testified that due to the unapproved use and installation contrary to specifications, BASF would not provide a materials warranty for the roof. 15. Investigator Dimond testified that Respondent’s installation of the roof did not meet industry or the Registrar’s workmanship standards because the roof leaked. 16. Inspector Dimond testified that he performed a prehearing inspection on October 3, 2014, and that Respondent had not complied with the Registrar’s January 17, 2014 directive to remove the Senergy product, to install an appropriate roofing system, and to repair interior water damage at Mr. and Mrs. Anderson’s residence.[6] 17. Mr. Stafford testified that on March 5, 2002, Respondent submitted its Application for Contractor’s License to the Registrar and that on April 3, 2002, the Registrar issued License No. B.173302-R to Respondent.[7] Mr. Stafford testified that Jerry Tuccino was listed on Respondent’s application as officer and qualifying party.

18. Mr. Stafford testified that on November 16, 1998, Tuccino Brothers Plastering Inc. (“Tuccino Brothers”) submitted an Application for Contractors License and that Jerry Tuccino was listed on the application as president and qualifying party of Tuccino Brothers.[8] On November 27, 1998, the Registrar issued License No. CR36.140717-D to Tuccino Brothers. 19. On January 14, 2010, Patrick S. Johnson filed a complaint with the Registrar against Tuccino Brothers’ License No. CR36-140717-D regarding its application of an exterior insulation finish system at his property located at 4360 N. La Cholla Blvd., Tucson, Arizona 85255.[9] The Registrar designated Mr. Johnson’s complaint as Case No. T10-0338. An Investigator on behalf of the Registrar conducted a jobsite inspection and on February 10, 2010, issued a Corrective Work Order in Case No. T10-0338 directing Tuccino Brothers to perform certain repairs. 20. The Registrar subsequently issued a Citation and Complaint in Case No. 2010-3385588 (formerly Case No. T10-0338).[10] After Tuccino Brothers failed to file a timely written answer to the Citation and Complaint in Case No. 2010-3385588, on September 28, 2010, the Registrar issued a Decision and Order finding that under A.R.S. § 32-1155(B), Tuccino Brothers’ failure to file a timely written answer was deemed an admission of the charges in the Citation and Complaint.[11] As a consequence of Tuccino Brother’s admission, the Registrar suspended its license until it corrected its workmanship deficiencies and ordered it to pay a $500.00 civil penalty pursuant to A.R.S. § 32-1154(D). 21. Tuccino Brothers failed to correct its deficient workmanship and failed to pay the $500.00 civil penalty in Case No. 2010-3385588. As a result of Tuccino Brothers’ failure to pay the civil penalty, on February 8, 2010, the Registrar revoked License No. CR36.140717- D.[12] CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[13] 2. The Citation and Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it appears that it actually received notice of the hearing.[14] 3. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[15] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[16] 4. The Registrar established that Respondent departed from manufacturer’s specifications by applying a stucco product that was designed for vertical surfaces to Mr. and Mrs. Anderson’s domed roof and by failing to install expansion joints. Therefore, the Registrar established cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(2).[17] 5. The Registrar established that Respondent installed a roofing system of Mr. and Mrs. Anderson’s residence that leaked, in violation of the Registrar’s workmanship and industry standards. Therefore, the Registrar established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[18] namely A.A.C. R4-9-108.[19] 6. The Registrar established that Respondent failed to comply with the January 17, 2014 Corrective Work Order in Case No. 2013-2948 that directed it to make certain repairs. Therefore, the Registrar established cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(22).[20] 7. The Registrar established that Respondent’s contract with Mr. and Mrs. Anderson did not contain an estimated completion date, did not apprise Mr. and Mrs. Anderson of their right to file a complaint with the Registrar for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and did not provide the Registrar’s telephone number or website address. Therefore, the Registrar established cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(12),[21] namely A.R.S. § 32-1124(B).[22] 8. The Registrar established that Jerry Tuccino was listed on Respondent’s License No. B-173302-R and on Tuccino Brothers’ License No. C36.140717-D and that on February 8, 2011, the Registrar revoked Tuccino Brothers’ License No. C36-140717-D. Therefore, the Registrar established cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(20).[23] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent Tuccino Enterprises, Inc.’s License No. B.173302-R shall be revoked. It is further recommended that Respondent shall be required to pay the sum of $500.00 as a civil penalty for its violation of A.R.S. § 32- 1154(A)(22) pursuant to A.R.S. § 32-1154(D) for its failure to comply with the Corrective Work Order in Case No. 2013-2847. 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 final Order in this matter, 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 five days from the date of that certification. Done this day, November 3, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See the Registrar’s Exhibit 1. [2] See id. at 4. [3] See the Registrar’s Exhibit 3. [4] The Registrar’s Exhibit 5. [5] See the Registrar’s Exhibit 4 at 5-7 (Nazmin Washington at BASF’s e- mails in response to Investigator Dimond’s inquiries). [6] See the Registrar’s Exhibit 6 (Investigator Dimond’s report of his prehearing inspection). [7] See the Registrar’s Exhibit 7. [8] See the Registrar’s Exhibit 8 at 1. [9] See the Registrar’s Exhibit 9 at 1-3. [10] See the Registrar’s Exhibit 8 at 11-14. [11] See id. at 15-17. [12] See id. at 8. [13] See A.R.S. § 32-1154(A). [14] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [15] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [16] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [17] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [18] 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.” [19] 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.” [20] A.R.S. § 32-1154(A)(22) 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.” [21] 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.” [22] A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’“ on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [23] A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.”

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