ALJDEC decisions subject to certification as final

2017A-2367-CHC-ROC · Registrar of Contractors · 2017-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cynthia Susanne Woodman,

COMPLAINANT,

v.

Jennie Marie Baker

DBA: Triple E Roofing,

License No. CR42.279725-D,

RESPONDENT.

No. 2017A-2367-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2017, at 8:30 a.m.

APPEARANCES: Cynthia Susanne Woodman (“Complainant”) appeared on her own behalf; Jennie Marie Baker DBA: Triple E Roofing (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about August 2, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR42.279725-D for dual roofing to Respondent. Respondent’s address of record is 2021 S. 20th Ave., Safford, Arizona 85546-4041.

On or about May 5, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on the new roof that she had installed on Complainant’s home at 1305 Central Avenue, Safford, Arizona 85546.

The Registrar assigned the complaint to its Investigator, Michael Springer. Investigator Springer performed a jobsite inspection and, on May 25, 2017, issued a Directive to Respondent, requiring it to perform the follow certain corrective work, in relevant part as follows:

1. Correct underlayment placement on lower eaves. Underlayment cannot be under drip edge.

2. Replace 6 vents as outlined in contract including electrical riser boot.

3. Correct flashing around windows. Flashing behind, not in front.

4. Correct all nails that are over penetrating in eaves. No more than 1⁄4”

5. Correct all exposed nails in roof field.

6. Correct drip edges with no support trim behind them.

7. Straighten drip edges that do not run straight.

8. Correct missing underlayment under ridge shingles on NW side.

9. Correct missing ridge shingles on NW side.

The deadline for Respondent to perform the corrective work on the Directive was June 12, 2017.

On June 13, 2017, the Registrar issued a Citation, 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 mailed the Citation to Respondent at her address of record.

On June 28, 2017, Respondent filed a timely written answer to the Citation, stating that the deadline to comply with the Directive was June 28, 2017, not June 12, 2017, as stated on the Directive, and that she requested another week to comply with the Directive.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent State agency, for an evidentiary hearing.

On June 30, 2017, the Registrar issued a Notice of Hearing, setting a hearing via videoconference from the Registrar’s office in Tucson on August 24, 2017, at 8:30 a.m. The Notice of Hearing advised Respondent that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

The Registrar sent a copy of the Notice of Hearing to Respondent at her address of record.

Although the start of the hearing was delayed nineteen minutes, Respondent did not request to appear telephonically, did not appear, personally or through an attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend her license.

Complainant and Investigator Springer testified to establish the facts set forth above. Investigator Springer testified that Respondent had not contacted him. Complainant testified that Respondent had not performed any work on her roof since she filed the complaint with the Registrar.

Investigator Springer testified that he was unable to substantiate Complainant’s complaint no. 3, that “[t]he felt layment should have been half lapped on lowest level & carport” because the shingles had been installed over the layment prevented him from seeing how it was installed. Investigator Springer explained that his inability to substantiate the complaint about the layment on the carport and lower level did not limit Complainant’s possible claim to the Residential Contractors’ Recovery Fund because he had substantiated Complainant’s complaint item no. 2, that “[t]he felt layment was placed below the drip edge,” which was Item No. 1 on the May 25, 2017 Directive. Inspector Spring explained that Respondent would have to replace all of the layment on the house, including on the carport and lower level, to correct her installation of layment on the eaves beneath the drip edge.

Investigator Springer also could not substantiate Complainant’s complaint no. 9, that Respondent’s “[w]orker stepped through turbine opening and caused a hole 2’ in diameter” because there was no independent evidence to show that Respondent caused the hole. Investigator Springer’s Jobsite inspection report noted a large hole in Complainant’s roof directly beneath the turbine and his jobsite photographs included one of the hole.

Complainant credibly testified that she saw Respondent’s worker step between rafters and cause the hole that Investigator Springer photographed beneath the turbine.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website on this date. The website does not show prior discipline having been taken against Respondent’s license, although it does show one administrative suspension. Respondent’s license history is considered as a factor in mitigation of the recommended penalty. Respondent’s failures to appear at the hearing or to contact the Registrar’s investigator are considered as factors in aggravation.

/ / / /

CONCLUSIONS OF LAW

The Notice of Hearing that the Registrar mailed to Respondent at her address of record was reasonable and she is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154(A) by a preponderance of the evidence.

Complainant established that Respondent performed poor work on the roof in the ways described in the Registrar’s May 25, 2017 Directive, as well as in the layment over the carport and lower level and the hole in the drywall beneath the turbine. Complainant has thereby establed cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.

Complainant also established that Respondent failed to comply with the Registrar’s May 25, 2017 Directive, furnishing additional cause to revoke or suspend Respondent’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 final order, Respondent Jennie Marie Baker DBA: Triple E Roofing’s License No. CR42.279725-D shall be suspended for ten business 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 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, August 30, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors