ALJDEC decisions subject to certification as final

2017A-5887-CHC-ROC · Registrar of Contractors · 2018-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Guadagno,

COMPLAINANT,

v.

American Handyman Service LLC dba,

For A Job Done Right,

License No: 258243

RESPONDENT.

No. 2017A-5887-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 10, 2018, 1:00 P.M.

APPEARANCES: Complainant Thomas Guadagno appeared on his own behalf; Santee Penrod, Managing Member, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. American Handyman Service, LLC, dba, For A Job Done Right (Respondent), is the holder of License Number 258243 issued by the Registrar of Contractors (Registrar).

2. On or about November 24, 2017, Thomas Guadagno (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the repair of a gutter at Complainant’s residence in Tucson, Arizona.

3. Upon completion of an inspection performed by the Registrar on January 9, 2018, the Registrar issued a Directive, dated January 18, 2018, requiring Respondent to correct the alleged deficiency in Respondent’s work by February 8, 2017, as follows

Complaint Item 1: "He lied to me saying he seal joints and brackets...when he left I performed a water test on the roof for 8 minutes and the joints are leaking"... (Description by complainant of the leaking gutter)

4. When the Registrar performed another inspection of February 9, 2018, and observed that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated February 12, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for April 10, 2018, at 1:00 P.M. At the hearing, Complainant Thomas Guadagno testified on his own behalf; Santee Penrod, Managing Member, testified on behalf of Respondent. Gregory Johndrow, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he observed leaks at the splice joints of the gutter when a water test was performed by the Complainant. He stated Respondent advised him that Respondent did not apply sealant to the gutter because the job entailed only re-attaching the gutter. He further stated that Respondent refused to perform corrective action because Respondent indicated it had returned Complainant’s payment for the work.

7. Complainant testified that he contacted Respondent because he had a gutter that was hanging low and leaking. He further testified that Respondent’s employee, Wes, came to repair it and that he had a conversation with Wes about the need to seal the joints of the gutter in addition to re-attaching it. Complainant stated that after the job was completed, Wes said he had sealed the joints even though the invoice Complainant received reflected there was no warranty for leaks. Complainant stated three or four joints still leaked after Wes left the residence and that he called Respondent to have someone return because of the leaking. He testified that Wes returned but that a verbal altercation ensued and that no further work was done. He stated that the check he issued to Respondent for $102.00 had yet to be cashed and that he never received it back.

8. Santee Penrod on behalf of Respondent initially stated he did not want to present any testimony. Based on his other statements during the course of the hearing, it is apparent that Mr. Penrod was not present at the job site when the job was performed so he did not have first-hand knowledge as to the conversations between Complainant and Respondent’s employee Wes. When questioned by the Tribunal, he indicated Respondent’s employee Wes could not attend the hearing because he was on another job. He further stated the $102.00 check was never cashed and that he had instructed Wes to return the check to Complainant the day of the job.

CONCLUSIONS OF LAW

1. 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. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. 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).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar.

...

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.

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Complainant testified that he advised Respondent’s employee to fix the leaks in addition to re-attaching the gutter. While Respondent maintains that the job did not include fixing the leaks, Respondent failed to present the testimony of its employee, the one witness who could testify on behalf of Respondent as to the conversation with Complainant regarding the scope of the work. As the Tribunal is presented only with the testimony of Complainant as to whether the scope of the work included leak repair, there was no evidence presented to refute Complainant’s testimony. Accordingly, the Tribunal accepts Complainant’s unrefuted testimony.

7. Respondent seemingly raised as a defense the fact that it received no compensation for the work it performed because it returned or attempted to return Complainant’s check or the full amount Complainant paid. However, Respondent undertook to repair the gutter for compensation. Further, the regulation, Arizona Administrative Code Rule 4-9-108(A), that requires that a contractor’s work be performed in a professional and workmanlike manner does not include a requirement that such work be performed for compensation before such regulation applies. Thus, the fact that Respondent may not have received any compensation for its work does not alleviate Respondent’s obligation to perform the work in a professional and workmanlike manner.

8. Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to take appropriate corrective action. The facts are undisputed that Respondent made no effort to undertake corrective action.

9. Therefore, Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, American Handyman Service, LLC’s, License Number 258243 is suspended for two days.

In the event of certification of this 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 the certification.

Done this day, April 30, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors