ALJDEC decisions subject to certification as final

2018A-05200-ROC · Registrar of Contractors · 2019-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2109. APPEARANCES: Judith and Frank Armijo, Complainants, Mike Springer, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT The Registrar referred the matter to the Office of Administrative Hearings[1], an independent state agency, for an evidentiary hearing regarding a Complaint filed on November 1, 2018, by Judith A Armijo [hereinafter, “Armijo”] against the Respondent Jennie Marie Baker, d/b/a: Triple E Roofing, ROC License Number 279725 [hereinafter “Triple E”] for below standard workmanship[2] and failure to comply with a Written Directive within a reasonable time after the receipt of the Directive, without valid justification.[3] On January 4, 2018, the Registrar issued a Notice of hearing setting a hearing on February 25, 2019 at 1:30 p.m. The Registrar mailed copies of the Notice of hearing to Triple E at its address of record with the Registrar. 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.” Triple E did not request to appear telephonically and neither Triple E request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Triple E did not appear through an authorized member, employee or attorney. Consequently, Triple E did not present any evidence to defend its license. A hearing was conducted on February 25, 2019. The Registrar of Contractors issued a its Directive containing a Corrective Work Order [CWO] to Triple E on November 21, 2018 as follows:

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

Item1. Utility room had leaking. Contractor came out glued and nailed flat roofing July 2017. Tried to call contractor never responded to calls. Roof leaked during rain storm on 8- 13-18 and again in Oct 2018.

In the CWO, Triple E was given until 5:00 p.m., December 11, 2018, within which to notify the Registrar of its compliance with the CWO. The Registrar having not received a notice of compliance from Triple E, on December 12, 2018, issued its Citation against Triple E charging two alleged violations: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and a violation of A.R.S. § 32-1154(A)(22)[4] Triple E timely filed an Answer to the Complaint on December 12, 2018.[5]. The Answer states : From: jennie baker <[email redacted]>[6] Date: Wed, Dec 12, 2018 at 9:34 AM Subject: Re: Case 2018-05200 - Citation - DO NOT REPLY To: Lovilia Martinez…

Triple E Roofing is out business and had been since February 2018. The reason she hasn’t got a hold of any one is because there is no phone number to the company any more. There is no one who can fix this since this company doesn’t exist any more (sic).

The filing of the Answer admits the Citation was received by Triple E at its address of record.[7] At hearing, Respondent Triple E presented no evidence. Testifying at the hearing was Registrar Investigator Mike Springer. Investigator Springer testified that he was the person who conducted the Job Site Inspection [the “JSI”] on November 21, 2018 in follow-up to the Complaint. He testified that at the JSI, Armijo was present but Triple E did not appear. He testified that the Notice of the inspection was provided to Triple E at its address of record.[8] Mr. Springer reviewed the documents related to Triple E’s agreement with Armijo[9]. He testified that the bid and payment made for the roof work totaled $5,200.00. He said his inspection revealed below standard workmanship regarding the roof work that Triple E performed in this case. Investigator Springer testified that the flat roof over Armijo’s laundry room did not utilize correct materials resulting in the roof itself “bunching up.” The roof leaks, he said. Apparently Triple E did return to the site before the Complaint was filed and attempted to stop the leaks by nailing and gluing the problem area, but the leak persisted anyway. He said in addition to the bunching roof problem, the leaking that resulted has damaged the sheet rock in the laundry room that is located just below the leaking area. He said this roof should lay flat and should not leak. Instead, where the flat room met shingles, the roof was bunching up. That the roof did not lay flat and that it leaked, he testified, was below standard workmanship.

Inspector Springer testified that he then issued the Directive containing a Corrective Work Order [CWO] to Triple E on November 21, 2018. Inspector Springer stated that Triple E was given until 5:00 p.m., December 11, 2018, within which to notify the Registrar of its compliance with the CWO. Triple E failed to comply with the CWO by the CWO deadline. He then referred the matter to the ROC for the issuance of a Citation, if appropriate. A review of the Registrar’s public access website discloses that Triple E since the license was first issued by the Registrar on August 8, 2012 has been disciplined 10 times and has two pending unresolved Complaints. Triple E’s license number ROC 279725 is in a REVOKED status.

CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint No. 2017A-4793- CHC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). PVTS LLC dba Phoenix Valley Tree Service is a licensee. 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. Ariz. Admin. Code § R2-19-119. 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). The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property 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:

***** 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.

Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” The mailing of copies of Directive with its CWO, the Citation and the Notice of Hearing to Triple E at its address of record were reasonably calculated to provide actual notice to Triple E.[10] Triple E is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41- 1092.05(D). Triple E did not appear at the hearing conducted in this case. Triple E’s Answer assert it has been out of business since February of 2018. Triple E has presented virtually no evidence to defend its license. Thus, Triple E has failed to meet its burden of proof regarding any affirmative defenses. By a preponderance of the evidence, Triple E did violate A.R.S. 32-1154.A.3 on this job by violating the workmanship standards as specified in A.A.C. R4-9-108. By a preponderance of the evidence, Triple E did violate A.R.S 32-1154.A.23 by failing to comply with the written directives of the Registrar of Contractors, i.e. the CWOs, within a reasonable amount of time without valid justification. That Triple E did ignore each effort of the Registrar to address the concerns of the Complainant - in that Triple E did not appear for any of the Registrar Inspector’s inspections and that Triple E failed to appear at the hearing in this case - is an aggravating circumstance. That Triple E’s license is revoked and that Triple has suffered ten disciplinary actions against it by the Registrar are aggravating circumstances. There are no mitigating circumstances noted in the record. Aggravating circumstances outweigh any mitigating circumstances. Triple E’s license should, under the facts presented in this case, be suspended for not less than five days unless Triple E complies with the previously issued CWO. Triple E’s contractors license should be revoked.

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that the Contractors License of Jennie Marie Baker, d/b/a Triple E Roofing ROC License be revoked. FURTHER IT IS RECOMMENDED that this case be closed. 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, March 11, 2019.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Agency Record in this case. [2] A.R.S. § 32-1154(A)(3) - R4-9-108 [3] A.R.S. § 32-1154(A)(22) [4] 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. [5] Agency Record, page 4. “ [6] Jennie Marie Baker is listed by the Registrar as the Qualifying Partner for the Respondent Triple E. [7] No explanation is presented in the Answer for why Triple E received its Citation but not the CWO and Notice of Hearing which were both sent to the same address of record with the ROC. [8] See, Agency Record, page 21. The Directive and CWO was returned to the ROC as “address undeliverable”, “unable to forward.” [9] See, Agency Record, pages 55 through and including page 58. [10] Inasmuch as Triple E filed an Answer to the Complaint in this case is strong evidence that Respondent Triple E had proper notice.

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