ALJDEC decisions subject to certification as final

2018A-1102-CHC-ROC · Registrar of Contractors · 2018-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2018, 1:00 P.M. APPEARANCES: Complainant Diana Glennon appeared on her own behalf; Aaron Holmes, owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Arizona Roofing Solutions, Inc. (Respondent), is the holder of License Number 258441 issued by the Registrar of Contractors (Registrar). 2. On or about March 9, 2018, Diana Glennon (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with installation of a roof by Respondent at a residence in Tucson, Arizona. 3. After an inspection of the job site on May 14, 2018, the Registrar issued a Directive dated May 21, 2018, requiring Respondent to remedy various alleged violations by June 8, 2018, as follows: 1. Water stains on porch decking installed by respondent on front porch. 4. After being advised that the corrective work had not been performed, the Registrar issued a Citation to Respondent on June 20, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for September 13, 2018, at 1:00 P.M. At the hearing, Complainant Diana Glennon testified on her own behalf and presented the testimony of James Schwiegerling; Respondent presented the testimony of Aaron Holmes, owner. The Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 – 6 and Respondent’s exhibit numbers 1 – 7.[1] 6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he conducted an inspection on March 30, 2018, and at that time could not substantiate any items of poor workmanship. He stated he offered to perform a water test of the roof at the inspection but that Complainant declined that offer. After Complainant added an addendum to her Complaint, the Investigator performed another inspection on April 20, 2018, at which time Complainant requested that the Investigator perform a water test. The Investigator stated that the inspection had to be rescheduled because Complainant did not provide a ladder sufficient to allow safe access to the roof. 7. The Investigator further testified that another inspection was held on May 14, 2018, at which time he performed a water test for two hours on all portions of the roof but that he did not observe any active leaking. He stated that the Registrar required that he personally verify leaking which could not be accomplished by photographs or video of past leaking. He further stated that he did observe water stains on the underside of the front porch decking which he included in the Directive. He stated the Registrar was advised on June 14, 2018, that this Directive item was not completed. However, he further testified that Respondent advised him on July 3, 2018, that the Directive item had been completed. Lastly, as a result, he testified that he called Complainant on September 6, 2018, to schedule a pre-hearing inspection but did not receive a returned call and therefore was unable to perform a pre-hearing inspection. 8. Complainant Diana Glennon testified as to all of the problems experienced with the roof leaking. As to the Directive item, she stated she had informed the Registrar that Respondent had completed the Directive by painting and that she was very pleased with it. However, she stated the Directive item was only one small piece of a much larger problem, namely, a leaking roof. 9. James Schwiegerling, husband of Complainant, testified on behalf of Complainant that Respondent was hired in May 2017 to re-roof the house and had been paid over $40,000.00. He further testified as all of the times over the past year that water came pouring in or leaked into the house from the roof and that the roof was still leaking. He stated that in terms of the Directive, Respondent had done what was asked of it. 10. Aaron Holmes, owner of Respondent, testified on behalf of Respondent that he has done everything he could to complete the project and that he had corrected the Directive item. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119. 3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994); see also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

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…. 5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9- 108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. Complainant has failed to meet its burden to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Complainant acknowledged that Respondent corrected the original Directive item. While the parties spent a great deal of time debating the cause of the roof leaking, the fact remains that the leaking of the roof could not be substantiated by the Registrar and leaking was not included in the Directive. For that reason, The Tribunal makes no finding as to the existence or cause of leaking, if any. 7. Complainant has further failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Indeed, it was uncontradicted that Respondent completed the corrective work. 8. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that this case shall be dismissed. . In the event of certification of this 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 the certification. Done this day, October 3, 2018. /s/ Roger Geddes________ Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s file.

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