ALJDEC decisions subject to certification as final

2017A-5381-CHC-ROC · Registrar of Contractors · 2018-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David J Gherna,

COMPLAINANT,

v.

Jennie Marie Baker dba,

Triple E Roofing,

License No: 279725

RESPONDENT.

No. 2017A-5381-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2018

APPEARANCES: Complainant David J. Gherna appeared on his own behalf. Respondent Jennie Marie Baker doing business as Triple E Roofing appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Jennie Marie Baker doing business as Triple E Roofing (Respondent) is the holder of License No. 279725 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 18, 2016, David J. Gherna (Complainant) entered into a contract with Respondent for the removal of a roof and installation of a new roof on his home.

On or about October 24, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. After a jobsite inspection, Investigator Springer issued a written directive to Respondent that provided 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 the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 November 29, 2017.

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

Correct exposed nails on shingles throughout roof.

Correct shingle overhang. No more than 3⁄4 Inch.

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

Following the issuance of the written directive, someone from Respondent looked at the roof and stated that he did not observe any of the issues identified in the written directive. After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Springer testified that he had observed the issues identified in written directive.

Complainant testified that a Mr. Reed from Respondent inspected the roof after the directive was issued. According to Complainant, Mr. Reed stated he would come back in two weeks to repair the roof, but Mr. Reed never returned to the home. Complainant stated that the day before the hearing, someone else wanted to repair the issues with the roof, but Complainant stated he wanted to proceed with the hearing in this matter.

Ms. Baker testified that Respondent was willing to repair those items identified in the written directive.

Administrative notice is taken of Respondent’s prior License record on February 22, 2018. Such prior License record reflects that Respondent’s License No. 279725 was first issued on August 2, 2012, and was last revoked on November 30, 2017. Such prior License record also reflects that there were four open complaints, four complaints resulting in discipline against Respondent’s license, and three resolved/settled/withdrawn complaint against Respondent’s license. Respondent’s license was suspended for non-renewal from September 1, 2016, through September 7, 2016; was suspended for discipline from October 24, 2017, through October 26, 2017; from October 31, 2017, through November 9, 2017; and from November 1, 2017, through November 21, 2017; was revoked for discipline on November 30, 2017; revoked for failure to pay a civil penalty on November 30, 2017 and on December 1, 2017; and suspended for lack of bond on January 11, 2018.

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 violations 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 279725.

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, February 22, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors