ALJDEC decisions subject to certification as final

2017A-3014-CHC-ROC · Registrar of Contractors · 2017-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John R. Crooks,

COMPLAINANT,

v.

Manuel Alberto Amado dba,

Odama Construction and Roofing Co.,

License No: 168449, 187856

RESPONDENT.

No. 2017A-3014-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 8, 2017

APPEARANCES: Complainant John R. Crooks appeared on behalf of himself. Manuel Amado appeared on behalf of Respondent Odama Construction and Roofing, Co.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On March 19, 2016, Complainant John R. Crooks, (hereinafter “Mr. Crooks”), entered into residential home remodeling contract with Respondent Odama Construction and Roofing, Co. (hereinafter “Odama”). Under the contract, Odama agreed to reroof Mr. Crook’s home located at 7001 N. Perugia Way, Tucson, AZ 85741.

2. Odama’s qualifying party is Manuel Amado.

3. On or about March 19, 2016, Odama began work on Complainant’s roof.

4. On or about March 21, 2016, Obama stopped work on Complainant’s roof.

5. On June 12, 2017, the Registrar received a complaint from Mr. Crooks alleging poor workmanship on the part of Odama.

6. On July 3, 2017, Investigator John Smith, (hereinafter “Investigator Smith”), conducted a jobsite inspection. Both parties were present at the jobsite inspection. Investigator Smith and Mr. Crooks went to the roof of Mr. Crook’s home. Neither

Mr. Amado nor any other representative from Odama went to the roof with Investigator Smith and Mr. Crooks.

7. On July 5, 2017, Investigator Smith issued a Directive to Odama. The July 5, 2017 Directive provides, in relevant part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 7/21/2017.

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

“As of today’s date, the roof has areas of bubbled roof.” This was described to be air pockets below the roofing material in various locations throughout the roof, and along the ridge.

“...A/C lines are adhered to the roof.”

“There is still tar on a lot of the top edges of the skylights. A lot of them are new.” The skylight(s) that can be substantiated as new should be corrected by appropriate means.

8. Odama failed to correct the items listed in the Directive.

9. On January 19, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3) and (A)(22).

10. Odama filed a timely response to the Citation and Complaint.

11. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

12. On October 3, 2017, Investigator Smith conducted a compliance inspection. Investigator Smith concluded that the items listed in the Directive had not been corrected.

13. On October 6, 2017, an evidentiary hearing was held.

14. At hearing, Mr. Crooks testified that Odama performed unsatisfactory work on his roof.

15. Investigator Smith testified regarding his inspections and the issuance of the Directive and Citation. Investigator Smith testified that he mailed the Directive to Odama’s address of record with the Registrar. Investigator Smith also testified that Mr. Amado provided him with an additional address to mail correspondence. Investigator Smith testified that he mailed the Directive to both addresses.

16. Mr. Amado testified that he has been performing construction work for several years. Mr. Amado testified that he did not make repairs, hire another contractor or contact Mr. Crooks because Mr. Crooks told him that he was going out of town to Colorado, and that no work was to be completed on his roof until November. Mr. Amado testified that Mr. Crooks wanted his assurance that the roof would not fail while he was out of town. Mr. Armado testified that Mr. Crooks’s statement to him was just one of the reasons that Odama did not correct the items listed in the Directive. However,

Mr. Armado could not recall when Mr. Crooks told him not to complete any work on his roof.

17. Mr. Amado believed that there was nothing he could do to please Mr. Crooks. Mr. Amado testified that the buckling in the plywood could be the result of old age. Mr. Amado testified that he has known Mr. Crooks for years and he charged him less than his normal price for the job. Mr. Amado testified that Mr. Crooks is hard to “get along with”. Mr. Amado testified that Mr. Crooks “wants his pie and eat it too”.

18. Mr. Crooks testified that he told Mr. Amado that no work was to be completed on his roof until November before he filed his Complaint with the Registrar. Mr. Crooks testified that he left for Colorado on June 12, 2017 and returned to Tucson, AZ on July 1, 2017.

19. I find the testimony of Mr. Crooks to be credible.

20. Administrative notice is taken of the information available on the Registrar’s public website on October 26, 2017. The website reflects that there no open complaints against Odama’s license No. 187856 that was first issued on August 4, 2003. Odama’s prior license record also shows that Odama’s license 187856 is currently suspended for lack of renewal. The prior license record for license 168449 also shows that license 168449 is currently suspended for lack of renewal. The prior license record for license 168449 shows that there is currently one open complaint and no prior disciplinary action against license 168449. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence shows that the issues found by Investigator Smith constituted workmanship issues with the reroof installation. Therefore, the Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Respondent failed to correct the items listed in the Directive. Therefore, Complainant established that Respondent failed to comply with the Directive without valid justification in violation of A.R.S. § 32-1154(A)(22). Mr. Amado did not even contend that Odama failed to receive the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Odama Construction and Roofing, Co. License No(s): 168449 and 187856 for a period of one (1) day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 licenses, 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.

Done this day, October 25, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors