ALJDEC decisions subject to certification as final

2014A-4486-ROC · Registrar of Contractors · 2015-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 2015, at 1:00 p.m. The record was held open until November 17, 2015. APPEARANCES: Joseph Chiaramonte (hereinafter “Complainant” or “Mr. Chiaramonte”) appeared through his attorney, George V. Sarkisov, Esq., Phillips Law Group PC; Arizona Reign Roof Systems Inc. (hereinafter “Respondent”) was represented by its Qualifying Party/Officer, Roger Thomas Swartz (hereinafter “Mr. Swartz”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. CR-42.144021-D issued by the Registrar.[1] Respondent’s License No. CR42.144021-D is current. 2. Respondent is also the holder of License No. CR42.166210-D issued by the Registrar. Respondent’s License No. CR-42.166210-D is current. 3. This is a residential matter in which on or about June 2, 2014, Complainant contracted with Respondent for the re-surfacing and coating of the roof on his residence at 7032 East Presidio Road, Scottsdale, Arizona 85254 (hereinafter the “residence”).[2] 4. Respondent performed work on Complainant’s roof and on June 6, 2015, Complainant paid Respondent the agreed-upon contract amount of $5,000.00. Shortly after Respondent completed its construction work at Complainant’s residence, Complainant’s son examined Complainant’s roof and observed that the roof was “lightly sealed and had bubbles in it.” Complainant then inspected his roof and confirmed the problems on the roof. Complainant then notified Respondent of the problems with the roof. At first, Respondent failed to return Complainant’s telephone calls but then agreed to examine the roof. Respondent failed to examine Complainant’s roof as promised. Respondent then promised to correct the roof but failed to correct the problems with the roof. 5. On October 31, 2014, Complainant filed a Complaint against Respondent with the Registrar. 6. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. 7. On March 4, 2015, 2014, a written Directive was issued by the Registrar. 8. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Roof bubbling in several areas. 2. Roof coating not covering properly. Investigator viewed roof coating not covering up side walls like previous coatings and not covering properly in areas around skylight lips and between a/c vent and unit. Cover all previously coted areas and make professional looking separation lines where necessary.

9. Respondent failed to comply with the written Directive. 10. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s licenses. 11. On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[3]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[4]

12. Mr. Chiaramonte testified that he is a barber/hair stylist with no experience in roofing. Mr. Chiaramonte stated that he entered into an oral agreement with Respondent to perform the re-surfacing and re- coating of his roof for the sum of $5,000.00. Mr. Chiaramonte said that Respondent performed work on his roof and that he paid Respondent the agreed-upon contract price. Mr. Chiaramonte said that Respondent then provided him with a written invoice/contract signed by Respondent. Mr. Chiaramonte said that he had personally observed extensive bubbling and insufficient coating on his roof. Mr. Chiaramonte said that Respondent had repeatedly failed to comply with promises to properly correct his roof. Mr. Chiaramonte said that he did not believe that Respondent had the ability to properly correct his roof. Mr. Chiaramonte said that he had entered into a contract with the Respondent to properly “fix” his roof. 13. Complainant’s son, Frank Chiaramonte (hereinafter “Mr. F. Chiaramonte”) testified that he had examined his father’s roof. Mr. F. Chiaramonte stated that he observed bubbling and insufficient coating on the roof. Mr. F. Chiaramonte said that there was ponding on over 50% of the roof. Mr. F. Chiaramonte said that Respondent acknowledged that there were numerous problems with the roof and agreed to correct them. Mr. F. Chiaramonte said that Respondent failed to correct the problems on the roof. 14. Complainant’s daughter, Eva Chiaramonte-Curry (hereinafter “Ms. Chiaramonte-Curry”) testified that she is the administrative director for Phillips Law Group. Ms. Chiaramonte-Curry said that after Respondent failed to correct her father’s roof, she caused an attorney to contact the Respondent. Ms. Chiaramonte-Curry said that Respondent failed to comply with the attorney’s demand to either correct the roof or return her father’s money. 15. The assigned Registrar Investigator, Stephen M. Lawton (hereinafter “Investigator Lawton”), testified that he had not performed the initial onsite inspection and that he had not prepared the written Directive. Investigator Lawton said that the previous Registrar’s Investigator was no longer with the Registrar. Investigator Lawton stated that he had reviewed the file for this matter including the photographs taken by the previous Investigator. Investigator Lawton said that Respondent’s work on Complainant’s roof failed to comply with applicable workmanships standards. 16. Investigator Lawton’s testimony is found to be credible. 17. Mr. Swartz testified that Respondent performed most of its roofing work on Complainant’s roof in a professional and workmanlike manner. Mr. Swartz said that Respondent had cleaned the roof, repaired foam defects, and recoated the roof with elastomeric paint. Mr. Swartz denied that Respondent had applied any new foam roofing material on Complainant’s roof. 18. Mr. Swartz acknowledged that there were some problems with Complainant’s roof. Mr. Swartz stated that Respondent had orally agreed to perform maintenance work on Complainant’s roof, not install a complete new roof. 19. Mr. Swartz acknowledged that Respondent had failed to provide Complainant with any type of written contract until after the roofing work on Complainant’s roof was completed. 20. Mr. Swartz acknowledged that Respondent had not performed any corrective work on Complainant’s roof when the Complaint was filed. Mr. Swartz testified that the Respondent was waiting for the Registrar’s onsite inspection so that he could attend the inspection and obtain direction from the assigned Agency Investigator as to what work was required of Respondent. Mr. Swartz said that Respondent failed to attend the onsite inspection because he had failed to provide the Registrar with a forwarding address. 21. Mr. Swartz acknowledged that Respondent had failed to comply with the terms of the written Directive issued by the Registrar. Mr. Swartz testified that he had assigned the corrective work to one of Respondent’s employees. Mr. Swartz said that the employee took a few days off without his knowledge and that the corrective work was not performed within the time period set forth in the written Directive. 22. Mr. Swartz testified that Respondent was still willing to perform corrective work on Complainant’s roof and perform maintenance work on the roof. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[5] 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.[6] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[7] Complainant established by a preponderance of the evidence that there is excessive bubbling and insufficient coating on his roof. Investigator Lawton credibly testified that Respondent’s work on Complainant’s roof failed to comply with applicable workmanships standards. Complainant established by a preponderance of the evidence that Respondent failed to comply with the terms of the Registrar’s written Directive issued in his matter. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR42.144021-D and License No. CR42.166210-D of Respondent Arizona Reign Roof Systems Inc. shall both be suspended for five (5) days. It is further recommended that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent 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 Respondent’s contractor’s licenses effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent Arizona Reign Roof Systems Inc., 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 five days from the date of the certification. Done this day, December 3, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] This classification allows the licensee to apply or install weatherproofing (i.e. asphaltum, pitch, tar, felt, glass fabric, or flax) or roof accessories (i.e. flashing, valleys, gravel stops, or sheet metal) as required for the licensee to install or repair: 1. Roof tile 2. Shingles 3. Shakes 4. Slate 5. Metal roofing systems 6. Urethane foam 7. Roof insulation or coatings on or above the roof deck. This classification allows the licensee to replace up to three sheets (96 square feet) of plywood on the roof substrate; and install new or replace existing skylights where it does not require changes to the roof framing or roof structure. [2] See Complainant’s Exhibit 11 (Complaint with attachments). [3] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. 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)(22) provides as follows:

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 A.R.S. § 32-1154(A). [6] See A.A.C. R2-19-119. [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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