FINACT2018A-05816-CHC-ROC.pdf

2018A-05816-CHC-ROC · Registrar of Contractors · 2019-09-18

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Dawn Marie Monforte, Case No. 2018-05816

COMPLAINANT, Docket No. 2018A-05816-CHC-ROC v.

Paramount Roofing LLC FINAL ADMINISTRATIVE DECISION AND License No. ROC 266468, ORDER 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 of each finding of

fact or conclusion of law.

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 accepts it.

CONCLUSION AND ORDER

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 October 28, 2019.

Dated September 18, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail September 18, 2019 to: Respondent Paramount Roofing LLC 4020 E Oasis St Ste 3 Mesa, AZ 85215 Complainant Dawn Marie Monforte 15105 E Marathon Dr Fountain Hills, AZ 85268

Copy sent electronically this same date to:

Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2018-05816 / VE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 9.6.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dawn Marie Monforte, No. 2018A-05816-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Paramount Roofing LLC, DECISION License No. ROC 266468, RESPONDENT HEARING: August 16, 2019 APPEARANCES: Complainant Dawn Marie Monforte appeared on her own

behalf. Jeff Hansen, Owner and Qualifying Party, appeared on behalf of Respondent

Paramount Roofing LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

1. Paramount Roofing LLC (Respondent) is the holder of License No.

266468 issued by the Arizona Registrar of Contractors (Registrar).

2. On or about September 4, 2018, Dawn Marie Monforte (Complainant)

signed a contract with Respondent for the installation of a new roof. 3. On or about December 7, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. 4. The Registrar assigned the complaint to Investigator David Fagerburg. During the jobsite inspection, Investigator Fagerburg conducted a water test, but did not find any leaks at that time. After the jobsite inspection, Investigator Fagerburg issued a written directive to Respondent that provided 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

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 9.6.2019 ROC LEGAL

your compliance with this Directive prior to 5:00 p.m. on Friday February 8th.

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

Complaint Item 1: Installed “new” broken tile at front of house. Replace broken tiles. Complaint Item 2: Installed silicone up sides of home. Per contract not visible from street. Complaint Item 3: Broke RV gate. Replace strike bar. Complaint Item 4: Broke landscape lights. Replace broken landscape lights. Complaint Item 5: Cracked & broke patio tile. Replace broken patio tile. Complaint Item 6: Left foam in the street. Remove foam. Complaint Item 10: Never extended scuppers as written in contract. Extend scuppers.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, Respondent did some corrective work on the project and offered financial settlements for some items, such as the broken patio tiles. After the deadline in the directive expired, Investigator Fagerburg returned to the home to reinspect the roof and conducted a water test. No leaks were discovered at that time. 6. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32- 1154(A)(22). 7. Investigator Fagerburg testified that, according to the contract, the silicone up the sides of the home was not supposed to be visible from the street, but because the nearby street was on a hill, that area of the roof was visible from certain angles. Investigator Fagerburg stated that he conducted a prehearing inspection on August 14, 2019, at which time he observed the stucco repairs had been completed and the texture appeared “very well matched.” Investigator Fagerburg noted the stucco had not been painted yet. RECEIVED 9.6.2019 ROC LEGAL

8. Complainant testified that she had a substantial leak in her garage on or about February 22, 2019. Complainant asserted that the leak was the result of poor work on the roof. Complainant did not present any evidence establishing that the leak

was related to the roof. Complainant acknowledged that she repaired the RV gate and

landscape lights at her own expense and Respondent had not reimbursed her for the

RV gate, landscape lights, or broken tiles.

9. Jeffery Hansen, Respondent’s Owner and Qualifying Party, testified that

Respondent was willing to reimburse her for the damage to the RV gate, landscape

lights, and broken tiles, but noted that Complainant still owed Respondent more than

$13,000.00 on the contract. Mr. Hansen acknowledged that the silicone on the side

walls was visible from the street, so he asked Complainant to find someone she was

comfortable with performing the repairs. Complainant went to her homeowners

association and got the name of Cobblestone Stucco to perform the work. Mr. Hansen

reached out to Cobblestone on or about January 28, 2019, to address the stucco issue.

Due to factors beyond his control, including the garage leak, the work was not able to

be done until well after the deadline in the directive. Mr. Hansen stated that the stucco

had been repaired, but the stucco has to cure for 30 days before it can be painted, which was the only thing remaining to be done. Mr. Hansen testified that he paid for the stucco repair out of pocket. 10. Email correspondence among Complainant, Respondent, and the Registrar established that Complainant was involved in determining how the silicone on the stucco was to be repaired, and that she had concerns with how the contractors were suggesting it be addressed. Complainant was insistent that she be told exactly what was going to be done on the roof and what she would and would not allow to be done to repair to the roof. 11. Administrative notice is taken of Respondent’s prior License record on September 5, 2019. Such prior License record reflects that Respondent’s License No. 266468 was first issued on July 29, 2010, and is current. Such prior License record also reflects that there were no other open complaints or prior complaints resulting in discipline or that were resolved or settled.. RECEIVED 9.6.2019 ROC LEGAL

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 violations by a preponderance of the evidence. See A.R.S. § 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 evidence established that Respondent’s work was not in conformity

with the Registrar’s standards. Therefore, Complainant established that Respondent

did not complete the project in a workmanlike manner in violation of A.R.S. § 32-

1154(A)(3), namely A.A.C. R4-9-108.1 Notably, nothing in the record established that

the roof was leaking or was related to the leak in the garage. 4. The evidence established that Respondent attempted to complete the repairs to the roof in a timely manner, but were prevented from doing so because of a variety of circumstances, including Complainant’s demands as to when and how the repair work could be done. Therefore, Complainant failed to establish that Respondent failed to take appropriate corrective action without good cause following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).2 5. The Registrar does not expect or demand perfection of its licensees. Thus, contractors who perform work that is not in compliance with the Registrar’s standards must be afforded an opportunity to correct the issues to bring the work into

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.” 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)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” RECEIVED 9.6.2019 ROC LEGAL

compliance. In the instant matter, Respondent was not given that opportunity, and therefore, Respondent cannot be disciplined for a violation of A.R.S. § 32-1154(A)(3).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this

matter, the Registrar close Complainant Dawn Marie Monforte’s complaint in Case No.

2018-05816 against Respondent Paramount Roofing LLC’s License No. 266468 based

on Complainant’s failure to provide Respondent access to comply with the written

directive.

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, September 5, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors