ALJDEC decisions subject to certification as final

2017A-8-CHC-ROC · Registrar of Contractors · 2017-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chetan Raduka Kane,

COMPLAINANT,

v.

Herman Griego Jr. dba,

Herman's Builders,

License Nos. B.116716-R

B-2.191441-C,

RESPONDENT.

No. 2017A-8-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 4, 2017, at 1:00 p.m.

APPEARANCES: Chetan Raduka Kane (“Complainant”) appeared on her own behalf; Herman Griego Jr. dba, Herman’s Builders (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

According to the public website of the Registrar of Contractors (“the Registrar”), the Registrar issued to Respondent License No. B.116716-R for residential general contracting on or about August 22, 1996, and issued License No. B-2.191441-C for small commercial contracting on or about December 13, 2003. Respondent’s address of record P.O. Box 23676, Flagstaff, Arizona 86002-3676.

On or about December 30, 2016, Complainant filed a complaint with the Registrar against Respondent’s licenses based on his failure to protect her property when it worked on her home at 390 Willow Way, Sedona, Arizona, causing her to incur certain financial damages, and his failure to install a roof in a professional and workmanlike manner at a rental property that Complainant owned at 45 Borden Drive, Sedona, Arizona.

Complainant attached to her complaint a list of roofing work to be completed on Respondent’s letterhead dated November 14, 2016, which both parties signed. The list did not include Respondent’s license number, the jobsite address, an estimated date of completion, or Complainant’s mailing address, and did not apprise Complainant of her right to file a complaint with the Registrar against Respondent for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A) or provide the Registrar’s telephone number or website address.

Complainant also attached to her complaint Respondent’s business card, which did not show his license number preceded by the acronym “ROC.”

The Registrar assigned the complaint to its Investigator Steve Philpott to investigate. On January 12, 2017, Investigator Philpott sent a letter to Complainant and to Respondent at his address of record to notify them that he had scheduled jobsite inspections on January 27, 2017.

Respondent did not attend the jobsite inspections.

On February 2, 2017, Investigator Philpott issued a Directive that required Respondent to perform certain remedial or corrective work on or before 5:00 p.m. on February 20, 2017, in relevant part as follows:

Respondent’s proposal—which became the parties’ contract upon Complainant’s acceptance— calls for payment in excess of $1,000, but does not contain all the elements of a contract required by A.R.S. § 32-1158(B). Respondent’s proposal had to comply with A.R.S. § 32-1158(B), but failed to do so. This failure constitutes a violation of A.R.S. § 32-1154(A)(12). The respondent is to supply a compliant written contract to the investigator within the mandated time frame.

The Respondent provided the complainant a business card and a proposal, that does not contain the licensee’s license number preceded by the acronym ROC as required by ARS 32-1124.B and is a violation of ARS 32-1154.A.12 The respondent is to provide the investigator proof of compliant in the time frame mandated.

Complaint Item 1: 45 BORDEN DR There are new leaks in the roof within a few week of roof being put on.

Investigator’s Observation: In order to not create additional corollary damage to the residence, I did not conduct a water leak test on the roof. Roofs should not leak and should be installed to withstand winds accompanied by heavy rains. There is evidence present to substantiate this allegation. Respondent shall determine cause of the existing roof leak and correct condition including corollary damage.

Complaint Item 3: Plumbing roof jacks not removed of replaced

Investigator’s Observation: This allegation is substantiated. The proposal specifies “Install new plumbing roof jacks”

Complaint Item 4: Evaporative cooler supports removed and. not replaced. Wind might know it off as it is not attached and rocks.

Investigator’s Observation: This allegation is substantiated; the evaporative cooler was not re-secured properly after the roofing replacement.

6. Complaint Item 5: Damaged fascia needs to be replace, primed and painted

Investigator’s Observation: This allegation is substantiated. The piece of fascia replaced by the Respondent has not been primed and painted.

7. Complaint Item 8: Interior wall, beam, and floor in kitchen are, being damaged by these new leaks

Investigator’s Observation: There is evidence present to substantiate this allegation. Respondent shall determine cause of the existing roof leak and correct condition including corollary damage.

8. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

On February 2, 2017, the Registrar issued a Citation, charging cause to discipline Respondent’s licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. §§ 32-1124(B) and 32-1158(B), and A.R.S. §32-1154(A)(14). The Registrar sent the Citation to Respondent by certified and regular mail at his address of record.

On March 8, 2017, the Registrar received a copy of an email to Complainant on Respondent’s behalf from one Kelly Burke, who explained that she was assisting Respondent with the financial side of his business at his request because he had been detained in Coconino County jail since December 23, 2016, which the Registrar treated as a written answer. The email stated that since Respondent did not know when he would be released from jail, he “would like to save all of us, and the State, the additional time and expense of the Administrative Court process and make an agreement to pay you immediately for the cost of getting the repairs made to your roof/associated items and associated interior leak damages per the Registrar’s directive . . . .” The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing.

On March 21, 2017, the Registrar issued a Notice of Hearing, setting videoconference hearing on May 1, 2017, at 1:00 p.m. in the Registrar’s Flagstaff office. The Registrar mailed the Notice of Hearing to Respondent at its address of record.

On April 28, 2017, Respondent filed a motion to vacate the hearing because he “[did] not want to contest the complaint, due to his current circumstances.” The Administrative Law Judge assigned to the case denied the motion because the Registrar had referred the matter for an evidentiary hearing.

A videoconference hearing was held on May 1, 2017. Investigator Philpott testified. Complainant submitted 21 exhibits and testified on her own behalf.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the hearing did not conclude until approximately 2:12 p.m., Respondent did not appear, personally or through an attorney. Consequently, Respondent did not present any evidence to defend his licenses.

Investigator Philpott testified consistently with the February 2, 2017 Directive. Investigator Philpott testified that Respondent had not complied with the Directive and that after he issued the Directive, he determined that Respondent was in jail.

Investigator Philpott testified that he received calls from Respondent’s son. Investigator Philpott testified that since Respondent did not have workers’ compensation insurance, he could not have employees but could only perform his contracting work personally or through duly licensed subcontractors.

Complainant testified that Respondent’s son, Leo, and grandson, Elias, had installed rolled roofing on her rental. Complainant submitted photographs and testified that although the manufacturer required a base layer and top layer, only one layer of roofing had been installed and that the layer did not adhere to the substrate.

Investigator Philpott testified that Complainant had informed him that that the roof had not been properly installed but that he did not perform destructive testing to determine whether only one layer had been installed. Investigator Philpott testified that the appearance of the roof was poor and that there was evidence of roof leaks in the interior of the rental.

Complainant submitted evidence to establish her expenditure of additional monies for the roof at the rental property that were in addition to the contract price, including the following: (1) a receipt dated November 17, 2016, signed by Elias Griego for $60.00 for screws and washers to affix the rolled roofing that did not adhere to the substrate; (2) a receipt from Home Depot dated November 18, 2016, for $32.33 for an evaporative cooler leg kit; and (3) an invoice from Hahn Roofing dated March 21, 2017, for $225 to seal the chimney and install the cooler leg kit to prevent further damage.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. Respondent’s License No. B.116716-R has been administratively suspended for non-renewal or lack of bond three times, and was placed on a finite disciplinary suspension between March 2, 2016, and March 4, 2016. Between July 18, 2016, and July 22, 2016, both licenses were placed on a finite disciplinary suspension.

CONCLUSIONS OF LAW

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it appears that Respondent actually received notice of the hearing.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages. Therefore, Complainant is not entitled to recover in this administrative forum any damages for Respondent’s failure to protect Complainant’s furnishings at its job at her home on Willow Way.

The record established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(12), namely, A.R.S. §§ 32-1124(B) and 32-1158(B).

Complainant established that the roof that Respondent installed on her rental on Borden Drive did not comply with the Registrar’s workmanship standards. Therefore, Complainant established additional cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Respondent’s incarceration and failure to appear at the hearing show that, at this time, he cannot be regulated.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent Herman Griego Jr. DBA: Herman’s Builders’ License Nos. B.116716-R and B-2.191441-C shall be revoked.

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, May 8, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors