ALJDEC decisions subject to certification as final

2018A-05588-ROC · Registrar of Contractors · 2019-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2019 and August 13, 2019 APPEARANCES: Complainant Salvador Valencia appeared on behalf of himself. Jeffrey T. Brei, Esq. appeared on behalf of Respondent Tony’s Roofing, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On February 27, 2019, the Registrar of Contractors, (“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on April 24, 2019, by the Office of Administrative Hearings in Phoenix, Arizona.[1] 2. Respondent Tony’s Roofing, LLC (Tony’s Roofing) holds license numbers 308269 and 245855 issued by the Registrar. 3. Tony Sanchez is the owner of Tony’s Roofing. 4. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 5. Through the Citation, the Registrar alleges that Tony’s Roofing may have violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. sections 32-1158(B); Ariz. Rev. Stat. sections 32-1154(A)(22). 6. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Tony’s Roofing. 7. On or about August 8, 2018, Mr. Valencia and Tony’s Roofing entered into an agreement wherein Tony’s Roofing would repair Mr. Valencia’s roof for $550. Mr. Sanchez explained to Mr. Valencia that he could not issue a warranty for a patch of work, 10 x 10. The proposal stated, “No Warranty Against Leaks.” 8. Mr. Valencia sent an electronic mail message (e-mail) to Tony’s Roofing inquiring about the warranty. However, Tony’s Roofing did not respond. 8. In or around July 2018, Tony’s Roofing began work. 10. In or around August 2018, Tony’s Roofing stopped work. 12. On or about November 19, 2018, the Registrar received a Complaint from Mr. Valencia alleging poor work and abandonment on the part of Tony’s Roofing. 13. On or about December 14, 2018, Registrar Investigator Mike Springer conducted a jobsite inspection. 14. On December 17, 2018, Investigator Springer issued a Directive.

The Directive provides, 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 2, 2019. You are hereby directed to remedy the following violations by the appropriate means:

1. Complaint Item 2: Had more damage to the interior of my home than before repairs.

2. Complaint Item 3: Left gaps between vents and tiles that exposed roofing paper.

3. Complaint Item 5: Used wrong color of tiles that company said would match existing tiles.

4. Complaint Item 6: Left white colored glue or caulking residue throughout roof.

15. During the time period for compliance under the Directive, the parties attempted the settle the matter but could not reach a resolution. During late December 2018, Tony’s Roofing attempted to tarp Mr. Valencia’s roof while the parties were trying to reach an agreement, however, Mr. Valencia did not respond to Tony’s Roofing’s request. After the parties were unable to reach a settlement, Tony’s Roofing sent an email to Mr. Valencia on January 2, 2019 to correct the items listed in the Directive, however Tony’s Roofing did not receive a response from Mr. Valencia. 19. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 20. At hearing, Mr. Valencia testified on behalf of himself. Tony Sanchez testified on behalf of Tony’s Roofing. 21. Investigator Springer testified regarding review of the complaint, his job site inspection, and the issuance of the Directive. Investigator Springer testified that he never conducted a water test on the roof and did could not specify exactly where the leaks in Mr. Valencia’s roof were located. 22. Mr. Valencia contended that he began experiencing a greater amount of water damage after Tony’s Roofing repaired his roof. Mr. Valencia contended that Tony’s Roofing performed poor work when it repaired his roof. 23. Tony’s Roofing contended that it repaired the area of the roof that was specified under the contract. However, Tony’s Roofing informed Mr. Valencia in writing that it could not provide a warranty against leaks. Tony’s Roofing contended that it was not responsible for the leaks that occurred in a different area from which Tony’s Roofing repaired the leak. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The preponderance of the evidence does not show that the leaks in Mr. Valencia’s roof were caused by Tony’s Roofing. Furthermore, Tony’s Roofing informed Mr. Valencia in writing that it could not provide a warranty against leaks. 4. Moreover, the preponderance of the evidence shows that Tony’s Roofing made attempts to comply with the Directive but the parties were unable to reach an agreement. When Tony’s Roofing offered to tarp Mr. Valencia’s home during the last week of December 2018, and perform corrective work on January 2, 2019, Mr. Valencia never responded. 5. The Administrative Law Judge concludes that Mr. Valencia did not provide Tony’s Roofing with access to his home to correct the work listed under the Directive. 6. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, September 3, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The hearing was continued to May 15, 2019 and set for further hearing on August 13, 2019.

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