ALJDEC decisions subject to certification as final

2016A-1843-ROC · Registrar of Contractors · 2016-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Koehn,

COMPLAINANT,

v.

Diaz Roofing LLC,

License No. CR42.264775-D,

RESPONDENT.

No. 2016A-1843-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 9, 2016, at 8:00 a.m., and November 9, 2016, at 3:00 p.m.

APPEARANCES: Barbara Koehn (“Complainant”) appeared on her own behalf; Diaz Roofing LLC (“Respondent”) was represented by Douglas H. Clark, Jr., Esq., Mesch Clark & Rothschild PC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about July 22, 2010, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR42.264775-D for dual roofing to Respondent.

On or about May 31, 2016, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent had not performed its contracts to replace fascia boards and repair interior drywall at Complainant’s home at 9565 E. Vendela St., Tucson, Arizona 85748.

The Registrar assigned the complaint to its Investigator, Arlo Houston (“Investigator Houston”), for investigation. On July 8, 2016, Investigator Houston performed a jobsite inspection and on July 20, 2016, issued a Directive to Respondent to replace the fascia boards that it had removed on or before 5:00 p.m. on August 8, 2016.

On August 19, 2016, Investigator Houston performed a Compliance Jobsite Inspection. Investigator Houston’s Compliance Jobsite Inspection Notes provided in relevant part as follows:

I took photos with my Canon PowerShot ELPH180.

I noted the fascia board's installed by R were misaligned, poorly cut, had exposed nail holes, had shrinking caulk, and had cracks.

Compliance Findings:

1. “Sections of fascia board’s installed by [Respondent] were misaligned, poorly cut, had exposed nail holes, had shrinking caulk, and had cracks.

After the Compliance Inspection, Investigator Houston referred the matter to the Registrar’s Legal Department. On August 22, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Respondent’s qualifying party/member, David Diaz, filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that Respondent had refunded $530.00 to Complainant for the drywall repairs and fascia boards. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

A telephonic evidentiary hearing was held from the Registrar’s Tucson office on November 9, 2016. Complainant testified on her own behalf. Respondent submitted four exhibits and presented the testimony of Mr. Diaz. Investigator Houston also testified and discussed the photographs that he had taken at the Compliance Jobsite Inspection that were included in the Registrar’s electronic file.

Hearing Evidence

After the roof on Complainant’s house was damaged, her homeowner’s insurer agreed to replace the roof. On or about January 20, 2016, Respondent submitted a proposal to tear off and replace the roof and to “[i]nstall/repair fascia” in “3 section areas” for a total contract price of $6,570.00.

At some point, Respondent agreed to repair interior drywall that had been damaged by the roof leak. Complainant paid Respondent a total of $7,100.00.

On or about July 8, 2016, Respondent issued an amended proposal to perform certain work in addition to the work described in the January 20, 2016 proposal, to wit, “[r]epair drywall and cracks,” for an additional cost of $280.00. Respondent also included the item on the January 20, 2016 proposal, “[i]nstall/repair fascia” in “3 section areas,” but added $250.00 to the price of the contract for this work. The total price of the July 8, 2016, amended proposal was $7,100.00.

Respondent eventually returned $530.00 to Complainant. Respondent did not perform any drywall repairs at Complainant’s house because Investigator Houston informed Mr. Diaz that such work was beyond the scope of Respondent’s C42 license.

Investigator Houston testified that replacing a limited number of fascia boards was incidental to Respondent’s replacement of the roof and that it was allowed to perform such incidental work under the scope of its C42 roofing license.

Mr. Diaz testified that he understood that painting and caulking the fascia boards was beyond the scope of Respondent’s C42 roofing license. Mr. Diaz testified that Complainant had informed him that she intended to paint and caulk the old, remaining fascia boards and that she would leave paint out for him to paint the new boards.

Respondent submitted photographs that did not show any obvious deficiencies in the fascia that Respondent had installed and that showed the poor condition of the remaining fascia at Complainant’s house. Mr. Diaz stated that most of the fascia needed to be replaced, but that Complainant could not afford it.

Investigator Houston noted that the resolution and angle of Respondent’s photographs did not allow him to point out the deficiencies that he had noted at his Compliance Jobsite Inspection. Investigator Houston shared with Respondent’s attorney the photographs that he had taken at the Compliance Jobsite Inspection, which clearly showed that the three fascia boards that Respondent had installed were misaligned, poorly caulked, poorly cut, and had exposed nail holes and cracks.

Mr. Diaz testified that Home Depot does not stock the same size fascia boards that were originally installed on Complainant’s house. In addition, because he is not a carpenter, he does not have the saws and other equipment that would allow him to shave down the boards to make them fit exactly.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license file at the Registrar’s public website. On this date, Respondent’s license was current and in good standing. This appears to be the only complaint pending against the license. Although Respondent’s license has been administratively suspended four times for lack of bond or non-renewal, no prior discipline has ever been taken against the license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Complainant established by a preponderance of the evidence cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, based on Respondent’s poor installation of the three fascia boards. It appears that this work was within the scope of the original January 20, 2016 proposal. If Respondent did not have the tools and experience to properly install the three replacement fascia boards in compliance with the Registrar’s and industry standards, it should not have undertaken this work.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. CR42.264775-D of Respondent Diaz Roofing LLC shall be suspended for a period of one business day.

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 21, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors