FINACT2018A-04250-ROC.pdf

2018A-04250-ROC · Registrar of Contractors · 2019-03-11

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Pedro Ogas, Case No. 2018-04250 COMPLAINANT, Docket No. 2018A-04250-ROC v. Ray Brothers Construction, Inc., FINAL ADMINISTRATIVE DECISION DBA: Ray Brothers Granite, AND ORDER License No. ROC 196703 Ray Brothers Construction, Inc. DBA: Ray Bros Granite, License No. ROC 244820

Ray Brothers Construction, Inc. License No. ROC 281811 RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on April 15, 2019.

IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable

to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-

delivered to the Registrar’s physical address or mailed to:

Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE On page 3, line 7 replace “17” with “12”. On page 4, line 2 replace “June 1, 2004” with “June 11, 2004”. On page 4, line 5 replace “June 6, 2018” with “June 6, 2008”. Dated March 6, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail March 6, 2019 to:

Respondent Ray Brothers Construction Inc DBA: Ray Bros Granite 1761 N Silverton Cir Mesa, AZ 85203

Taylor W. Tondevold, Esq. TONDEVOLD LAW, PLC 1635 N Greenfield Rd Ste 138 Mesa, AZ 85205 Complainant Pedro Ogas 715 W 2nd St Safford, AZ 85546

Derek Rapier, Esq. CHANNEN DAY, PC 1717 W Thatcher Blvd Safford, AZ 85546 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Case No. 2018-04250 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 2.19.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pedro Ogas, No. 2018A-04250-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Ray Brothers Construction, Inc., DBA: Ray Brothers Granite, License No. ROC 196703 Ray Brothers Construction, Inc., DBA: Ray Bros Granite, License No. ROC 244820

Ray Brothers Construction, Inc., License No. ROC 281811

RESPONDENT.

HEARING: January 29, 2019 APPEARANCES: Derek Rapier, Esq. appeared on behalf of Complainant Pedro Ogas. Taylor Tondevold, Esq. appeared on behalf of Respondent Ray Brothers Construction, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On December 11, 2018, the Arizona Registrar of Contractors,

(“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing

on January 29, 2019, at the Office of Administrative Hearings in Phoenix, Arizona.

2. Ray Brothers Construction, Inc., (“Ray Brothers”), holds license numbers

196703, 244820, and 281811, issued by the Registrar.

3. Clifford Daniel Ray is the qualifying party for Ray Brothers.

4. The Notice of Hearing shows that the hearing was set to consider the

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 2.19.2019 ROC LEGAL

charges made in the CITATION AND COMPLAINT. 5. Through the CITATION, the Registrar alleges that Ray Brothers may have violated A.A.C. R4-9-108, and thereby ARIZ. REV. STAT. (“A.R.S.”) § 32-1154(A)(3); and

A.R.S. § 32-1154(A) (22). The CITATION shows that if the Administrative Law Judge

finds that any of the alleged charges are valid, the Registrar may suspend or revoke

Ray Brothers’s license.

6. On or about December 12, 2016, Pedro Ogas and Ray Brothers entered

into a residential construction agreement wherein Ray Brothers would repair the roof on

Mr. Ogas’s house.

7. On or about March 13, 2017, Ray Brothers began construction work on

the roof.

8. On or about September 10, 2018, the Registrar received a complaint from

Mr. Ogas alleging poor workmanship on the part of Ray Brothers.

9. On October 5, 2018, in response to Mr. Ogas’s complaint, Registrar

Investigator Mike Springer, (“Mr. Springer”), conducted a job-site inspection.

10. On October 10, 2018, Investigator Springer issued a DIRECTIVE to Ray

Brothers from the Registrar. The DIRECTIVE provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: Drip edge damaged by company, not completed. Complaint Item 2: Not enough screws on roof, wind damage. Complaint Item 3: Storage room under contract, not completed. Complaint Item 4: Damaged metal placed in home with saw cuts, used silicone to fix it. Complaint Item 5: Existing shingles on roof exposed. Complaint Item 6: The valleys of the roof not done properly. Complaint Item 7: Used wrong ridge cap on home. Complaint Item 8: Damage saw fit/ bad cuts. Complaint Item 10: Cuts / Ridges are not uniform. Complaint Item 11: Didn’t place jacks on pipes. Complaint Item 12: Around A/C unit not done properly.

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11. The October 10, 2018 DIRECTIVE stated that the above work had to be completed by 5:00 p.m. on October 25, 2018. 12. On or about November 2, 2018, Inspector Springer conducted a

compliance inspection. Investigator Springer found that Ray Brothers corrected

compliant items 3, 5, and 6.

13. Inspector Springer concluded that Ray Brothers failed to repair complaint

items 2, 4, 7, 10, 11, and 17.

14. Investigator Springer did not substantiate complaint items 1 and 8

because Complainant asserted that a third party performed the work.

15. Ray Brothers filed a timely response to the Registrar’s CITATION.

16. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

17. A hearing was held on January 29, 2019.

18. At hearing, Mr. Ogas asserted that Ray Brothers performed poor work

when it attempted to repair the roof on this house. Mr. Ogas explained that a worker by

the name of Marcos Garcia performed construction work on the drip edge. Mr. Ogas

explained that Mr. Garcia did not say that he worked for Ray Brothers but that he was doing Ray Brothers a favor. Mr. Ogas admitted that the roof has never leaked. 19. Mr. Ray asserted that Ray Brothers repaired the roof in a professional and workmanlike manner. Mr. Ray explained that Mr. Garcia never worked for him but that Mr. Ogas worked for an insurance adjuster company that is owed by his sons. 20. Mr. Ray submitted into evidence an electronic mail message from a salesperson from the Flatirons group, a company that sells the metal used to repair the roof. The salesperson reviewed a photograph of the ridge cap and concluded that the ridge cap was installed correctly as long as a “PPII or Classic Rib” roof was used when the roof was repaired. 21. Administrative notice is taken of Respondent’s prior License record on February 19, 2019. Such prior License record reflects that Respondent’s License No. 281811 was first issued on December 3, 2012. Such prior License record also shows that one complaint resulted in discipline against License #281811. RECEIVED 2.19.2019 ROC LEGAL

22. Respondent’s prior License record also shows that License No. 196703 was first issued on June 1, 2004 and is currently suspended. There is one open complaint against License #196703.

23. Respondent’s prior License record shows that License No. 244820 was

first issued on June 6, 2018. There has been no discipline taken against License No.

244820.

CONCLUSIONS OF LAW

1. Unless otherwise provided by law, a party asserting a claim, right, or

entitlement bears the burden of proof; a party asserting an affirmative defense has the

burden of establishing the affirmative defense. The standard of proof on all issues in

this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-

19-119.

2. “At a hearing on an agency action to suspend, revoke, terminate or

modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” A.R.S. § 41- 1092.07(G)(3). 4. 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). 5. 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.").

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6. “Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. § 1-211(B). 7. 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).

8. A.R.S. § 32-1154(A) provides:

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: ***** 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. (Underscore added.)

9. A.A.C. section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. The preponderance of the evidence shows that Ray Brothers did not repair the roof in a professional and workmanlike manner in violation of A.A.C. R4-9- 108, and thereby of A.R.S. § 32-1154(A)(3).1 However, the preponderance of the

A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” RECEIVED 2.19.2019 ROC LEGAL

evidence does not show that Marcos Garcia was employed or hired by Ray Brothers to repair Mr. Ogas’s roof. 11. The preponderance of the evidence shows that Ray Brothers violated

A.R.S. § 32-1154(A)(22) by failing to comply with the DIRECTIVE.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order

in this matter, License No. 196703, License No. 244820, and License No. 281811 of

Ray Brothers Construction, Inc., shall each be suspended for a period of three calendar

days.

It is further recommended that the Registrar require Ray Brothers Construction,

Inc. to pay the sum of $250.00 as a civil penalty.

It is further recommended that if Ray Brothers Construction, Inc. fails to pay the

entire amount of the civil penalty on or before thirty days following the effective date of

the Registrar’s Order, the Registrar revoke Ray Brothers Construction, Inc.’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Ray Brothers Construction, Inc., as defined in A.R.S. § 32-1101(A)(5), unless Ray Brothers Construction, Inc. 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 19, 2019. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors