ALJDEC decisions subject to certification as final

2016A-2994-ROC · Registrar of Contractors · 2017-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Irene Emmert,

COMPLAINANT,

v.

Ramos Family Concepts, Inc.,

License No. KB-1.299524-D,

RESPONDENT.

No. 2016A-2994-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING DATES: January 20, 2017, at 1:00 p.m. and February 9, 2017, at 1:00 p.m.

APPEARANCES: Irene Emmert (“Complainant”) appeared on her own behalf on both hearing dates; Ramos Family Concepts, Inc. (“Respondent”) failed to appear on both hearing dates.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about June 22, 2015, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.299524-D for dual building contracting to Respondent. Respondent’s address of record is 1745 S. Spartan Ct., Gilbert, AZ 85233-8700.

On or about August 10, 2016, Complainant filed a complaint with the Registrar against Respondent alleging among other things that its workmanship was poor in its performance of its contract to repair the flat roof and to perform other work at Complainant’s house at 8627 N. 48th Ln., Glendale, Arizona 85302. According to complaint, Respondent had been paid $8,500.00 on its $17,116.23 contract.

The Registrar assigned the complaint to its Investigator, Jack Grimm (“Investigator Grimm”), for investigation. Investigator Grimm performed a jobsite inspection and on September 26, 2016, issued a directive to Respondent to perform certain repairs on or before 5:00 p.m. on October 12, 2016. The September 26, 2016 directive provided in relevant part as follows:

Roof- Have pictures where there was bad worn roof panels on roof. Made several trips to start work/supplies, poured coating over bad. Worn wood panels, coating uneven, last rain saw pools of water and stains due to water. Roof needs to be redone completely, have had other contractors come out and agreeded bad workmanship.

Correct roof sheathing in the agreed upon areas that were marked prior to the inspection. Re-roof and Re-coat in these locations.

2. Front walkway - had to be redone, bad wood and still not acceptable, brought replaced wood, also bad and not painted.

Complete paint on 2x2’s at front entry.

3. 2 gates, contractor broke gates, left side of house, worker George. Gate right side not complete does not close, loose.

Correct loose gate to block post on the west side of the house.

4. Workers dropped some type of rubber dripping from roof [onto] patio, furniture, patio rugs and patio furniture covers.

Clean drip spots from back concrete patio and repaint fascia that have runs in various locations at back patio.

5. Patio ceiling has cracks from nails and roofing coating.

Correct location at back patio where sheathing is uneven.

6. Leaks at ceiling inside.

Touch up ceiling at fireplace in front room and first bedroom.

7. Unpainted sheathing at over hang on east side.

Complete painting at overhang on east side.

Complainant requested a hearing. On October 21, 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, and A.R.S. § 32-1154(A)(22).

The Registrar’s electronic file contains a September 19, 2016 letter from Daniel Monas at Allstate Insurance Company to Complainant on her insurance claim, stating that “[i]t was noticed during the inspection that the new roofing material installed was different than that allowed on the estimate. It was also noted that there were soft spots on the roof as well as area[s] where rain water is pooling.”

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On November 14, 2016, the Registrar issued a Notice of Hearing, setting an evidentiary hearing on January 3, 2017. The Registrar sent a copy of the Notice of Hearing to Respondent at its address of record.

On December 30, 2016, OAH received a motion to continue from Complainant’s family friend, William Davis, in relevant part as follows:

Ms. Emmert is confused by frequent phone calls from the respondent, 'Juan' from Ramos Family Concepts that the hearing was postponed due to a death weeks ago in the Ramos family. Juan called again on 12-30-16 informing her she did not need attend the hearing because it was postponed to an undetermined date. Ms. Emmert has a scheduled court date of January 3, 2017 at 8:30 am before Judge Diane Mihalsky to discuss the issue of Ms. Emmert's roof repair. Unfortunately, Ms. Emmert slipped in water that had entered her home during the last rainfall. Ms. Emmert went to urgent care due to the injury and was then sent to Banner Thunderbird hospital. Ms. Emmert was released from the hospital on 12-29-16 with a heart monitor and is currently home bound until released from the cardiologist. Ms. Emmert is formally asking for a continuance of the hearing to a future date in order for her to regain her health from the fall and the cardiac event she experienced from the fall. If documents are needed from the urgent care or from the hospital she will provide.

OAH staff verbally informed the parties that the hearing would be continued. On January 3, 2017, the Administrative Law Judge (“ALJ”) issued an order continuing the hearing to January 20, 2017. OAH staff sent the January 3, 2017 order to Respondent at its address of record.

A hearing was held on January 20, 2017. Complainant testified on her own behalf and submitted eight exhibits, some of which consisted of numerous photographs. Investigator Grimm also testified.

Respondent did not request to appear telephonically at the continued hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed sevemteen minutes to allow Respondent additional travel time, 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.

At the January 20, 2017 hearing, Complainant submitted a report from Dan Sorenson, the Sales and Project Manager of Diversified Roofing, stating that the material that Respondent installed on the roof was inappropriate for a flat roof, in relevant part as follows:

Per my inspection of the roof it didn’t seem that a sound roofing material had been used on the roof. You brought me to your garage where you showed me to your garage where you showed me material that had been left. It was [Bitec] Self-Adhering membrane MAT-40. Per my inspection which consisted of taking a sample from the roof it does seem that the material was installed on the roof. Where I took a sample at the front of the roof there was only a single ply of roofing on the home. It is unacceptable for flat roofs to only have one layer of roofing material and this material is not warrantied nor is it acceptable to be installed in flat roof applications.

When I had confirmed that the material you had showed me in the garage was the material installed on [the] roof I provided you with the public information about installation of this product and also got a letter from the distributor. It is intended for pitched metal or tile roof systems only. . . .

Investigator Grimm testified consistently with his September 26, 2016 directive. Investigator Grimm testified that because the Registrar’s investigators cannot perform destructive testing, he was not able to verify how Respondent had constructed the roof.

Investigator Grimm testified that he saw no evidence of roof leaks at his initial jobsite inspection and that water is expected to pool on a flat roof.

Complainant testified that the roof had started leaking in several places since Investigator Grimm performed the initial jobsite inspection.

On January 24, 2017, the ALJ issued an order setting a further hearing to allow Complainant to arrange for Mr. Sorenson to show Investigator Grimm the results of Diversified Roofing’s destructive testing and for Investigator Grimm to view evidence of leaks. The order was sent to Respondent at its address of record.

A further hearing was held on February 9, 2017. Complainant testified and submitted two more exhibits, including Investigator Grimm’s report of his second inspection. Investigator Grimm testified.

Respondent did not request to appear telephonically at the further hearing and did not request that the further hearing be continued. Although the further hearing did not conclude until nearly an hour after its scheduled start time, Respondent did not appear, through an authorized officer, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Grimm’s report noted that Respondent used BiTec Mat-40 metal and tile underlayment on Complainant’s roof and that “[t]his is not the correct use of this material and is not the roofing material that was stated to be used by the insurance scope of work.” Investigator Grimm also noted that he “viewed locations in the garage ceiling that are stained and appeared to have been active leaks now or at some point.” Investigator Grimm concluded:

The current state of this roof is that the entire roof was covered with a product, the roofing membrane as stated above, that is not the correct material for the [application] as applied.

Investigator Grimm testified consistently with his report.

Complainant testified that the roof was leaking in the garage, the kitchen, the bedrooms, and the closets and around the beams near the fireplace. Complainant submitted photographs that showed dark spots on the ceiling in various locations and pronounced evidence of ponding on the roof.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s disciplinary history at the Registrar’s public website. On this date, Respondent’s license was current and in good standing. No discipline has ever been taken against the license, although three complainants were closed as resolved/settled/withdrawn. Complainant’s complaint is apparently the only complaint pending against Respondent’s license.

CONCLUSIONS OF LAW

The Notice of Hearing that the Registrar mailed and the orders continuing the hearing and setting a further hearing that OAH mailed to Respondent at its address of record were reasonable. Respondent is deemed to have received the notice of the continued and further hearing dates.

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.

“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.”

A.A.C. R4-9-108 provides in relevant part as follows:

A. A contractor shall perform all work in a professional manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertake that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Respondent’s failure to use roofing material that was designed for a flat roof on Complainant’s house violated professional industry standards. The other deficiencies identified in the September 26, 2016 Directive also violated professional industry standards. Therefore, Complainant established that Respondent violated A.A.C. R4-9-108, thereby furnishing cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A) (3).

Complainant also established that Respondent did not comply with the September 26, 2016 Directive, thereby furnishing additional cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. KB-1.299524-D of Respondent Ramos Family Concepts Inc. shall be suspended for a period of five business days.

It is further recommended that Respondent shall 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 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 five days from the date of that certification.

Done this day, February 9, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors