ALJDEC decisions subject to certification as final

2017A-1730-CHC-ROC · Registrar of Contractors · 2017-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian LeDuc,

COMPLAINANT,

v.

Creative Patio Covers & Remodeling LLC,

License No: 305760,

RESPONDENT.

No. 2017A-1730-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 22, 2017

APPEARANCES: Brian LeDuc (Complainant) appeared on his own behalf. Creative Patio Covers & Remodeling LLC (Respondent) was represented by George Valdez, its qualifying party and authorized representative.

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

Complainant is the owner/occupant of a residence located at 4724 East Vineyard Road Phoenix, Arizona 85042.

Respondent holds Arizona Contractor’s License No: 305760. The license is a class R62 for Minor Home Improvements, which has a contracting limit of $5,000.00 per project and excludes roofing work.

On March 30, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had contracted for a $5,750.00 project to build a carport with a sloped roof where Complainant could park his cars. The Complainant alleged that Respondent’s work was out of the scope of its license and was substandard in a variety of ways, especially as concerned Respondent’s work on the roof of the carport.

The Registrar assigned investigator Matt Gunstra investigate the complaint. Gunstra testified that he arranged to perform an inspection on April 25, 2017, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Gunstra indicated that at the time of an inspection, he substantiated 11 of Complainant’s 14 allegations regarding the carport. Gunstra also substantiated that the carport project lacked a building permit from the City of Phoenix (City).

As is the Registrar’s practice, Gunstra notified the City of the lack of permit for the carport.

On May 1, 2017, Gunstra 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 17, 2017.

You are hereby directed to remedy the following violations by appropriate means:

Complaint Item 1: Contractor incorrectly installed roofing and is not licensed to perform roofing.

Directive: Respondent shall install all roofing per manufacturer instructions and applicable code[.]

Complaint Item 4: Roofing material has bubbles and was not installed per manufacturer’s instructions.

Directive: Respondent shall install all roofing per manufacturer instructions and applicable code[.]

Complaint Item 5: Roofing material was roughly cut off flush with drip edge with no overhang.

Complaint Item 6: Nails penetrated the roofing material.

Directive: All exposed nail heads should be sealed[.]

Complaint Item 7: Sealant is cracking on roof flashing.

Directive: All flashing should be installed per IRC R903.2 and R905.2.8.3[.]

Complaint Item 10: Roofing material is overlapped onto existing roof creating a void for water leakage/seepage.

Complaint Item 11: Rafters are not nailed flush with facial board and/or not cut straight.

Complaint Item 12: Mismatched lag bolts and missing washers on lag bolts.

Complaint Item 13: Metal drip edge is not installed correctly.

Directive: In one area at the rear there are two very small sections of drip edge that do not meet code.

Complaint Item 14: Missing roofing piece to keep roofing material from being crushed or damaged in corners and at 90 degree angles

Directive: Cant strip to be installed at all roof to wall transitions per manufacturer instructions[.]

NOTE: Respondent shall schedule and comply with all applicable city inspections. No corrective work shall commence until a building permit has been obtained.

NOTE: Respondent may not perform roofing but is permitted to hire a properly licensed contractor to perform work of this scope[.]

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Complainant obtained a building permit from the City on May 16, 2017 and provided a copy to both Gunstra and Respondent. Gunstra extended the Directive until May 31, 2017 to permit Respondent sufficient time to comply with the Directive by performing corrective work and engaging a licensed roofing contractor to perform any repairs to the roof.

Despite the express language of the Directive requiring the Respondent to schedule all City inspections and comply with any items found by the City, Respondent refused to return to Complainant’s home until Complainant provided it with the red tags evidencing the work the City inspector wanted completed.

After the time period for compliance with the Directive, Complainant informed Gunstra that Respondent had performed no corrective work. Gunstra asked Complainant to note the lack of corrective work in writing, which Complainant did via email dated May 31, 2017. Gunstra forwarded the matter to the Registrar’s legal department.

On June 8, 2017, the Registrar issued Respondent a Citation. That Citation contained three charges. Charge 1 referenced “[a] violation of A.R.S. § 32-1154(A)(2)” stemming from the lack of building permit on the project. Charge 2 alleged “[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 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.”

Hearing was convened at the Office of Administrative Hearings (OAH) on August 22, 2017.

Gunstra testified consistently with the facts detailed above as did Complainant and Valdez. Valdez attempted to blame Complainant for the lack of permit for the carport project, but Gunstra said a contractor such as Respondent should decline to do a project where a Complainant refuses to obtain a permit. Valdez acknowledged that Respondent exceeded the scope of its license both because of the value of the project and by doing roofing work. Valdez agreed Respondent’s work failed to meet workmanship standards, but only because it was incomplete. He said that an unidentified City inspector told him that Respondent could not reenter Complainant’s property without having the red items identified. Valdez also testified that he could have a roofing contractor come out to Complainant’s property at any time, but had not yet done so despite Complainant’s request that Respondent provide the name of the licensed roofing contractor it intended to have perform corrective work on Complainant’s home.

CONCLUSIONS OF LAW

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. § 32-115.

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).

Undisputed credible testimony established that Respondent agreed to do work requiring a permit from the City without the necessary building permit in violation of A.R.S. § 32-1154(A)(2). The fact that Complainant obtained a permit after Respondent performed its work does not cure this violation.

Undisputed credible testimony established Respondent performed substandard work building the roofed carport on Complainant’s property. Thus, Complainant established the items specified in the Directive not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is, warranted for Respondent’s failure to schedule the City inspections required by the Registrar’s Directive, failure to hire a properly licensed contractor to do the roofing work specified in the Directive and failure to complete the remaining work identified in the Directive. Throughout this proceeding, Respondent has attempted to deflect responsibility for its deficient, unpermitted out-of-scope work. This raises concerns that Respondent cannot be regulated.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. License No: 305760 for a period of seven (7) 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 25, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors