ALJDEC decisions subject to certification as final

2016A-714-ROC · Registrar of Contractors · 2016-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2016, at 8:30 a.m. APPEARANCES: Barry William Sharp (“Complainant”) appeared on his own behalf via videoconference from the Arizona Registrar of Contractors’ (“the Registrar’s”) Flagstaff office; Louis Ruffin Byrd dba, Byrd Roofing and Construction (“Respondent”) appeared telephonically on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on whether cause exists to suspend or revoke Respondent’s licenses under A.R.S. § 32-1154(1), A.R.S. § 32-1154(2), A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, or A.R.S. § 32-1154(A)(22). 2. Administrative notice is taken of the Registrar’s public website pursuant to A.A.C. R4-9-117. On or about May 24, 2004, the Registrar issued License Nos. CR42.196516-D and CR42.196515-D for dual roofing to Respondent. On November 12, 2015, License No. CR42.196515-D was suspended for a Recovery Fund payout credential and on April 27, 2016, the license was revoked. Between August 8, 2015, and September 14, 2015, License No. CR42.196516-D was suspended for lack of bond and on November 12, 2015, the license was suspended for a Recovery Fund payout against an associated license. 3. On or about March 1, 2016, Complainant filed a complaint with the Registrar, alleging generally that Respondent had performed poor work on and then abandoned its September 12, 2015 contract to replace the roof on Complainant’s house at 1712 W. Moonglow Dr., Ash Fork, Arizona 86320. According to the complaint, Complainant had paid Respondent $3,000.00 on the contract price of $8,150.00. 4. The Registrar assigned the complaint to its Investigator, Jim Dimond (“Investigator Dimond”), for investigation. Investigator Dimond performed a jobsite inspection and on April 14, 2016, issued a Directive to Respondent to perform certain repairs on or before 5:00 p.m. on May 2, 2016, in relevant part as follows: The roof is not installed to manufacturer specifications as the lap is insufficient increasing the likelihood of a leak, fasteners are exposed and the ridge cap fasteners are not sufficient.

Additionally, a permit was required by Coconino county and the respondent is to obtain the permit and comply with any Coconino county requirements. . . . .

If your license 196516 and 196515 are suspended for administrative reasons or [are] revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.[1]

Investigator Dimond testified consistently with the Directive at the hearing. 5. Investigator Dimond testified that one of the main issues in this case is that Respondent cannot itself perform or subcontract to other contractors the corrective work that the Directive required because one of Respondent’s licenses is suspended and the other is revoked. 6. Investigator Dimond testified that the Registrar has received communications from Respondent and his wife stating that a former employee had committed embezzlement that prevented Respondent from meeting its contractual obligations. Investigator Dimond testified that eight consumer complaints have been filed with the Registrar against Respondent’s licenses and that the only one of the eight complaints in which Respondent had performed any work was Complainant’s. Investigator Dimond testified that Respondent had received a total of $43,031.22 for his eight contracts with the consumers who filed the complaints. 7. Complainant testified that the roof that Respondent constructed leaks and is causing collateral damage to the inside of Complainant’s home. 8. Complainant testified that he has been informed by other contractors that the roof Respondent constructed cannot be repaired. Complainant submitted an estimate from Big Sky Roofing, Inc. dated July 15, 2016, to tear off Respondent’s roof and construct a new roof on Complainants house for $9,550.00.[2] Complainant testified that he is retired, on a fixed income, and cannot afford to spend $9,550.00 to replace his roof. 9. Respondent testified that Complainant has money left over from the contract price that should be more than enough to repair the roof. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 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.”[7] 4. Complainant established Respondent failed to follow the manufacturer’s specifications when it installed the roof through Investigator Dimond’s testimony and Directive, thereby furnishing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32- 1154(A)(2).[8] 5. Complainant established that Respondent performed poor workmanship, in violation of the Registrar’s and industry standards, based on the Registrar’s Directive and because the new roof leaks, thereby furnishing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A) (3),[9] namely A.A.C. R4-9-108.[10]

6. Complainant established Respondent failed to comply with the Registrar’s written Directive by making a financial settlement with or by paying sufficient monies to Complainant to allow him to hire an appropriately licensed contractor to remedy Respondent’s poor workmanship on the roof, thereby furnishing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22).[11] 7. The record does not show that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1)[12] because it appears the Respondent started and performed substantial work on Complainant’s roof after Complainant paid the $3,000.00 down payment. 8. Respondent’s poor license histories are considered as factors in aggravation of the penalty in this case. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Louis Ruffin Byrd dba, Byrd Roofing and Construction’s License Nos. CR42.196516-D and CR42.196515-D shall be revoked. 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, August 5, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s electronic file at Rcc014 CorrectiveWorkOrder1.rft. [2] See Complainant’s Exhibit C-40. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [9] 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.” [10] 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.” [11] 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.” [12] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

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