ALJDEC decisions subject to certification as final

2015A-5195-ROC · Registrar of Contractors · 2016-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2016 APPEARANCES: Bonnie Lillian Glasgow (Complainant) appeared on her own behalf. Bill’s Awnings and Construction Co. (Respondent) was represented by its qualifying party Daniel Tharp. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant is the owner/occupant of a residence located at 20840 East Concho, Mayer, Arizona 86333. 2. Respondent holds Arizona Contractor’s License Nos. 266610 and 090162. 3. On December 21, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work when installing roofing at her home. 4. The Registrar assigned investigator Jim Diamond to investigate the complaint. 5. Diamond scheduled a jobsite inspection for April 12, 2016, which both Complainant and Respondent attended. Diamond testified that he went up on the roof and substantiated that there were issues with: (1) the stagger of the shingles not being installed according to GAF manufacturer specifications; (2) shingles on the pitched roof being out of square; (3) numerous exposed fasteners not being sealed; (4) over-driven fasteners; (5) shingles failing to provide the necessary overhang; and (6) wrinkled roofing. He also found that Respondent had failed to pull the necessary permit before it removed a significant amount of roof sheeting. Diamond also informed Respondent that its contract failed to inform Complainant of her right to file a complaint with the Registrar. 6. On May 19, 2016, Diamond sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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: Item 1- Poor work- The shingles have not been installed in accordance with manufacturer specifications as the shingle stagger requirements were ignored, exposed fasteners (shiners) are present and not sealed and the shingle overhang requirements at the eaves and rakes have not been met.

Additionally, at the west end of the cricket, the modified roofing is wrinkled and at the front of the flat roof, there is a tear that has peeled up at the fascia.

Also at the front porch roof, the shingles were installed in a manner that is not straight and square with the edges and the ridge.

The respondent is to correct the condition in an appropriate manner.

Item 2- When a substantial quantity of roof sheathing is replaced, Yavapai county requires that a building permit be obtained and the project inspected. It does not appear that a permit was obtained.

The respondent is to obtain the necessary permit and comply with any Yavapai county inspections and requirements in an appropriate manner.

Item 3- The respondents contract does not comply with the statutory requirements specified in ARS 32-1158.

The respondent is to review the attached violation letter and provide a compliant contract to the investigator within the time frame mandated on this directive.

7. The Directive contained a completion date of June 3, 2016 at 5:00 pm. During the time period specified in the complaint, Respondent did not return to Complainant’s home and did not attempt corrective work. 8. Diamond inquired of Complainant whether the issues had been corrected during the Directive period and was told that the issues were not addressed. Diamond than forwarded the matter to the Registrar’s Legal Department for review. Diamond received an amended contract from Respondent that included notice of the right to file a complaint with the Registrar during the timeframe provided in the Directive. 9. On June 16, 2016, the Registrar issued Respondent a Citation. That Citation contained three charges. Charge 1 reflected “[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).” Charge 2 referenced “[a] violation of A.R.S. §32-1154(A)(12)(“[f]ailure in any material respect to comply with this chapter”) and in particular a lack of compliance with A.R.S. §32-1158(B).[1] Charge 3 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.” 10. Daniel Tharp admitted on the record that some of the issues on Complainant’s roof required correction. He said that the first issue that needed correction involved the wrinkled roofing on the cricket that had been installed Respondent’s subcontractor, Triple R Roofing. Tharp indicated that Triple R maintained that the wrinkles would resolve on their own and said that Respondent had filed a complaint with the Registrar against Triple R. Tharp agreed that as the general contractor Respondent was responsible for Triple’s R’s work. Tharp also acknowledged that the Respondent had not addressed the other issues in the Directive, except for providing Diamond a revised contract and did not return to the Complainant’s house following the issuance of the Directive. He said that prior to the filing of Complainant’s complaint, Respondent attempted to settle this matter. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Respondent conceded that its subcontractor performed work of questionable quality on Complainant’s roof and that the work done by Respondent’s own men on the roof also needed to be addressed. Diamond offered credible testimony regarding the various issues surrounding the shingles, fasteners and wrinkles on the roof. Thus, Complainant established Respondent’s work on the above items was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[2] 4. Respondent admitted that its initial contract with Complainant did not contain language that notified her of her righto file a complaint with the Registrar. Thus, Complainant established that Respondent violated A.R.S. § 32-1154(A)(12), specifically, A.R.S. §1158(B)(9). 5. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(22).[3] An A.R.S. § 32-1154(A)(22) violation is appropriate here given Respondent made no effort during the Directive period to correct the multitude of workmanship issues it has now admitted existed. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 266610 and 090162 for a period of five (5) days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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 Registrar’s final order, the Registrar 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 40 days from the date of that certification. Done this day, August 26, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. §32-1158(B) provides: From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. [2] 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.” 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.” [3] 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.” Emphasis added.

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