ALJDEC decisions subject to certification as final

2015A-1074-ROC · Registrar of Contractors · 2015-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 11, 2015 APPEARANCES: John Tellier, Esq. for the Registrar of Contractors; James Rogel for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On August 5, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 11, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Az Classic Steel Homes, LLC (“Az Classic”), holds license number KB.2.190163-D issued by ROC.[1] James Rogel is Az Classic’s qualifying party and owner. Az Classic’s license has been inactive since October 22, 2013. 3. Mr. Rogel appeared and testified on his own behalf. ROC presented the testimony of Dee Dee Boulais, Steve Nelsen, its assistant chief investigator, and Adam Stafford, its assistant chief legal counsel. 4. The Notice of Hearing shows that the hearing was set to consider the charges made in the September 17, 2014 Citation and Complaint. At the hearing, the parties agreed that the Citation at issue was issued on April 30, 2015. 5. Through the Citation, ROC alleges that Az Classic has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). 6. Ms. Boulais owns a residence located 8151 North 105th Avenue in Peoria Arizona. In June 2011, Ms. Boulais was co-owner of the home along with her grandfather, Don Boulais. 7. On June 23, 2011, Mr. Boulais entered a contract with Az Classic in which Az Classic agreed to make repairs to the roof. 8. After Az Classic completed its work, the roof leaked and on February 19, 2013, Ms. Boulais filed a complaint with ROC alleging that Az Classic had committed eleven workmanship violations. Exhibit 6. 9. In response to that complaint, ROC Investigator Dennis Schnick conducted a job-site inspection, which led to his issuance of a Corrective Work Order dated March 13, 2013. Exhibit 7. In the Corrective Work Order, Az Classic was directed to make repairs in eleven areas. 10. Az Classic completed repair work at the house and ROC closed the first complaint. At the time Az Classic completed the repair work, ROC did not conduct additional inspections of work on which complaints had been filed, but rather it assumed that the work was properly completed. 11. After the repair work was completed, Ms. Boulais’s roof again leaked and on July 10, 2014, she filed with ROC a second complaint. Exhibit 9. 12. In response to the second complaint, ROC Inspector Jack Grimm conducted an inspection of the roof. On August 4, 2014, ROC issued a Directive instructing Az Classic to make repairs in eight areas. Several of the required corrections identified by Mr. Grimm previously had been identified in the Corrective Work Order as needing repair. 13. The Directive shows that Az Classic was required to demonstrate that it had made the required repairs no later than August 22, 2015. 14. Mr. Rogel sent Ms. Boulais three letters in an attempt to comply with the Directive. Ms. Boulais testified however that ROC had informed her that because Az Classic’s license was inactive, it was not allowed to complete the required repairs. 15. Mr. Stafford testified to the effect that because Az Classic’s license was inactive, the only way for it to comply with the Directive would have been for it to pay a contractor hired by Ms. Boulais.[2] 16. Exhibit 12 shows that as of August 7, 2014, Ms. Boulais’s roof had been completely re-done by another licensed contractor at a cost of $8500.00. 17. Mr. Rogel testified to the effect than any problems with the roof were the result of Mr. Boulais’s decision not to have the plywood replaced and due to storm damage. This testimony is not persuasive in light of the deficiencies noted in the Corrective Work Order and the Directive, both of which show deficiencies that are not related to the plywood or storm damage.[3] 18. Mr. Rogel argues to the effect that the complaint at issue should be considered time-barred because it occurred more than two years after the original roofing work was completed. Mr. Stafford testified however that ROC interprets the relevant statute as opening another two-year window after any required repairs have been completed. 19. Mr. Rogel acknowledged that Az Classic had hired an unlicensed individual who was not an employee to complete the original roofing work at the house. 20. ROC requests that Az Classic be required to pay restitution to Ms. Boulais in the amount of $7541.60 and that if it fails to do so, its license be revoked, and that a $500.00 civil penalty be imposed because Az Classic did not comply with the Directive. CONCLUSIONS OF LAW 1. ROC bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Ariz. Rev. Stat section 32-1155(A) provides that: On the filing of a written complaint with the registrar charging a licensee with the commission, within two years before the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation, in its sole discretion, may issue a citation directing the licensee, within ten days after service of the citation on the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked.

5. ROC’s interpretation of Ariz. Rev. Stat section 32-1155(A) under which a “new” two years commences to run after a contractor completes any required repair work is fair and sensible because contractors would be able to avoid responsibility for poor work and incomplete or ineffective repairs if complaints were limited to only the initial two years. See Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(statutes should be interpreted to provide a fair and sensible result). As such, the Citation at issue in this matter is not time-barred. 6. The preponderance of the evidence shows that Az Classic’s roofing work was not done in professional or workmanlike manner, which is a violation of Ariz. Admin Code section R4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3). 7. A contractor is subject to discipline if it fails to take appropriate corrective action without valid justification after receiving from ROC a written directive to take that corrective action. Ariz. Rev. Stat. § 32-1154(A)(22). 8. Az Classic did not comply with the Directive, but its failure to comply was justified. 9. Az Classic was required to comply with ROC’s Directive by August 22, 2014. Prior to that date however, Ms. Boulais’s roof had been completely replaced. After the roof was replaced, the only way for Az Classic to comply would have been for it to pay the contractor hired by Ms. Boulais, but there is no evidence to show that Ms. Boulais (or ROC) requested Az Classic to make such a payment.[4] Consequently, ROC has not shown by a preponderance of the evidence that Az Classic violated Ariz. Rev. Stat. section 32-1154(A)(22). 10. Because Az Classic has violated Ariz. Rev. Stat. section 32- 1154(A)(3), its license is subject to discipline. 11. Considering that Az Classic’s license is on inactive status and was on inactive status when the Directive was issued, ROC’s request that Az Classic be ordered to pay restitution in the amount of $7541.60 to Ms. Boulais is appropriate. ORDER IT IS ORDERED that on the effective date of the final Order in this matter Az Classic Steel Homes, LLC’s license number KB.2.190163-D is revoked unless the Registrar of Contractors receives and accepts written proof that Az Classic Steel Homes, LLC has paid to Dee Dee Boulais in certified funds restitution in the amount of $7541.60. 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 is forty days after the date of that certification. Done this day, September 30, 2015.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s website shows Az Classic’s license number as 190163. Consistent with existing policy, in this Decision the number set out in the caption is used. [2] Mr. Stafford, in response to a question from the Administrative Law Judge, acknowledged that Az Classic also could have reactivated its license and then completed the repairs. [3] The parties dispute whether Mr. Boulais had contracted to have “tear- off” work completed. Although Mr. Boulais was present at the hearing, neither party called him as a witness. [4] Based on ROC’s direction, Ms. Boulais was not even communicating with Az Classic.

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