ALJDEC decisions subject to certification as final

2017A-5461-CHC-ROC · Registrar of Contractors · 2018-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cecilia T Garcia,

COMPLAINANT,

v.

Jennie Marie Baker dba,

Triple E Roofing ,

License No: 279725

RESPONDENT.

No. 2017A-5461-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 12, 2018

APPEARANCES: Cecilia Garcia, Complainant, Steve Garcia, witness for Complainant.

ADMINISTRATIVE LAW JUDGE: Randy Wolfson

FINDINGS OF FACT

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

The Arizona Registrar of Contractors [ROC] issued a notice of hearing, setting a hearing at 1:00 P.M. on February 12, 2018. The ROC mailed copies of the notice of hearing to Respondent at its address of record on December 19, 2018.

The notice of hearing shows that the hearing was set to consider the charges made in the December 12, 2017 citation and complaint.

Through the citation, ROC alleges that Jennie Marie Baker d/b/a,Triple E Roofing has violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3). Ariz. Rev. Stat. sections 32-1154(A)(3 and also charged a violation of A.R.S. § 32-1154(A)(22) (Failure to take appropriate corrective action)

The Respondent failed to file an answer to the citation.

The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

A hearing was held on February 12, 2018.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 35 minutes, Respondent did not appear through an authorized member, employee, or attorney.

The Respondent therefore has defaulted. Consequently, Respondent did not present any evidence to defend its license.

Respondent Jennie Marie Baker d/b/a,Triple E Roofing holds License No: 279725 issued by the ROC.

Administrative Judicial Notice is taken of the ROC’s and the Arizona Office of Administrative Hearings’ electronic documents filed in this case wherein it is indicated that the Respondent has a previous record with the Registrar of four complaints resulting in discipline and four complaints that are pending with the ROC.

Complainant, Ms. Cecilia T Garcia, owns a residence located #2 Santa Fe Place in Safford, Arizona.

On November 7, 2017, Ms. Garcia entered a contract with the Respondents wherein Respondent agreed to make substantial repairs to the Garcia roof.

Attached as part of its complaint, Ms. Garcia presents her November 7, 2017 Estimate from the Respondent with charges noted to be a total of $4,500.00 with a notation stated on the estimate that the Complainant paid the Respondent $3,800.00 in cash in advance. In his testimony at hearing, Mr. Steve Garcia stated that the Respondent had been paid $3,800.00 by the Complainant in advance of Respondent starting work. Mr. Garcia further stated that the entire job was so poorly performed by the Respondent that the entire roof is required to be torn up and the roof re-installed.

At his job site inspection on November 22, 2017, ROC investigator Michael Springer found the Respondent’s failed to meet workmanship standards and on November 22, 2017 issued and served upon the Respondent a corrective work order [CWO]. Although the respondent was provided notice of the job site inspection, the Respondent did not attend the inspection. The CWO directed that on or before 5:00 P.M., on December 2, 2017 that Respondent shall

Correct all shingles with nails penetrating through top of shingles.

Correct shingles in back of house overhang that are lifting.

Correct all split fascia boards.

Correct all fascia board cuts that are cut wrong and caulked.

Mr. Garcia testified that after the November 22, 2017 job site inspection and the CWO, no one from the Respondent contacted the complainant to arrange work to comply with the CWO nor did the Respondent or it agents or employees returned to the complainant’s site to attempt any repairs in response to the CWO.

CONCLUSIONS OF LAW

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

The Respondent is defaulted for its failure to appear at the February 12, 2018 hearing in this matter.

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The Respondent did not present any evidence in this case and, thus, has failed to meet its burden of proof.

By a preponderance of the evidence, Respondent violated A.A.C.4-9-108(A) in that Respondent performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. Because Respondent violated A.A.C. 4-9-108, cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3) has been proven.

By Respondent’s default and by a preponderance of the evidence

presented and of record, cause is established to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(22).

The history of this Respondent:

Having had four prior complaints resulting in discipline from the ROC;

Its complete failure or refusal to comply with the CWO issued in this case;

Its failure or refusal to file an answer to the citation in this case; and,

Its failure to appear at the hearing on the instant complaint,

are aggravating factors which demonstrate, at this time, the Respondent either cannot be regulated or chooses not to be regulated.

The purpose of the Registrar’s licensing statutes is to protect the public

from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Under the facts presented in this matter where the Respondent:

Accepted $3,800.00, in cash in advance, from Ms. Garcia to perform roofing services, which services - when performed - failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner;

Ignored the CWO by taking no remedial action whatsoever;

Ignored the citation by failing to file an answer and failing to appear at the hearing in this matter after proper notice; and

Has been sanctioned by the ROC four times previously and has four pending complaints,

the legislative purpose of the ROC’s licensing statutes is best served by an Order suspending or revoking Respondent’s license.

The Respondent accepted $3,800.00 in cash and in advance to perform roofing services for the Complainant – which services and materials failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. Mr. Garcia’s testimony along with photographs taken by the ROC Inspector which are of record is persuasive that the entire roof area worked on by the Respondent will need to be removed and a new roof be required to be applied.

A “substantial injury” under A.R.S. § 32-1154(A)(7) is reasonably construed as one that is real and identifiable. Cecilia T Garcia has incurred a real and identifiable injury by Respondents acts and omissions on the project.

Since the Respondent has obstinately refused to correct deficiencies, a restitutionary remedy is appropriate. The damages sought by the Complainant are restitutionary in character. The Respondent should be ordered to pay the Complainant the sum of $3,800.00 in restitution.

The Respondent performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. The Respondent has committed two or more prior violations. Under the facts in this case, Respondent should be assessed, in accordance with A.R.S. § 32-1166(A) and A.C.C. R4-9-131, a penalty of Five Hundred Dollars [$500.00].

RECOMMENDED ORDER

IT IS RECOMMENDED that the license number 279725 issued to Jennie Marie Baker d/b/a, Triple E Roofing be ordered suspended for 20 days.

FURTHER IT IS RECOMMENDED that Respondent Jennie Marie Baker d/b/a, Triple E Roofing provide proof satisfactory to the ROC of payment of restitution, in certified funds, to Complainant Cecilia T Garcia within 30 days of the effective date of this Order in the amount of $3,800.00

FURTHER IT IS RECOMMENDED that in the case that Respondent fails to provide proof of payment satisfactory to the ROC of the restitution ordered in the amount of $3,800.00 within 30 days of the effective date of this Order, then Jennie Marie Baker d/b/a, Triple E Roofing’s license number 279725 shall be permanently revoked.

FURTHER IT IS RECOMMENDED that Jennie Marie Baker d/b/a, Triple E Roofing be ordered, in accordance with A.R.S. § 32-1166(A) and A.C.C. R4-9-131,to pay a penalty assessment, within thirty days after the effective date of this Order, of Five Hundred Dollars [$500.00].

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 is forty days after the date of that certification.

Done this day, February 13, 2018

Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors