ALJDEC decisions subject to certification as final

2018A-2111-CHC-ROC · Registrar of Contractors · 2018-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 2018, 1:00 P.M., October 25, 2018, 1:00 P.M. APPEARANCES: Complainant David Hooker appeared on his own behalf; Justin Lawson, qualifying party of Respondent, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. K & L Custom Roofing, LLC (Respondent), is the holder of License Number 315345 issued by the Registrar of Contractors (Registrar). 2. On or about May 9, 2018, David Hooker (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work on the part of Respondent in connection with roofing work at a residence in Willcox, Arizona (“project”). 3. The Registrar performed an inspection of the project on June 5, 2018. Thereafter, the Registrar issued a Directive, dated June 13, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 2, 2018, as follows:

1. Correct all gaps in siding where cut short and allowing entry into attic.

2. Correct all soffit joints that have no backing support and nail.

3. Ensure there is 150/1 ration for attic/soffit venting.

4. Missing trim between siding and brick.

5. Seal all open areas where daylight is shining through in attic (Minus soffit vents).

6. Install foam closure strips at bottom of metal panels.

7. Correct valley flashing where cut short. Should extend past fascia approximately 1.5 inches.

4. Thereafter, the Registrar also issued an Amended Directive, dated June 27, 2018, requiring Respondent to correct additional alleged deficiencies in Respondent’s work by July 16, 2018, as follows: 1. Ensure any metal roofing is not scratched from being on ground. 2. Ensure all gaps on Ridge and end pieces are sealed. 3. Ensure all metal is secured. 4. Ensure all fasteners are correct for purpose. 5. Prior to the Amended Directive deadline of July 16, 2018, the Registrar conducted a compliance inspection of the project on July 6, 2018, and noted that corrective work had not been fully completed as follows: 1. Correct all gaps in siding where cut short and allowing entry into attic. 2. Correct all soffit joints that have no backing support and nail. 3. Ensure there is 150/1 ration for attic/soffit venting. 4. Correct missing trim between siding and brick. 5. Seal all open areas where daylight is shining through in attic (Minus soffit vents). 6. Correct valley flashing where cut short. Should extend past fascia approximately 1.5 inches. 7. Ensure any metal roofing is not scratched from being on ground. 8. Ensure all gaps on Ridge and end pieces are sealed. 9. Ensure all metal is secured. 10. Ensure all fasteners are correct for purpose. 6. Further, prior to the Amended Directive deadline, the Registrar issued a Citation to Respondent, dated July 9, 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). 7. 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 October 4, 2018, at 1:00 P.M. 8. At the October 4, 2018 hearing, Complainant David Hooker testified on his own behalf; Respondent presented the testimony of Justin Lawson, qualifying party. Mike Springer, the Registrar Investigator (Investigator), testified on behalf of the Registrar.[1] The hearing was recessed and resumed on October 25, 2018, at 1:00 P.M. At the October 25, 2018, hearing, Complainant David Hooker testified on his own behalf, Respondent presented the testimony of Kristin Lawson, and the Investigator testified on behalf of the Registrar. 9. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he also conducted a pre-hearing inspection on October 3, 2018, and observed that only Directive Item No. 6 had been completed. 10. The Investigator further testified that there were two directives issued and that he believed a mistake was made in issuing the Citation before the Amended Directive deadline. He stated he did not recall telling nor did he believe it would make sense to tell Complainant that Respondent would not be permitted to complete the repairs before the Amended Directive deadline. He further stated that he seemed to remember an email or possibly a voicemail in which Respondent advised him that it had completed the corrective work, but that he could not locate any such email in his file. He did acknowledge that a note in his file reflected that at the compliance inspection, he advised Complainant that he would be sending the matter to legal and that he advised Complainant that Complainant was not obligated to allow additional work once the Directive deadline had passed. 11. Complainant David Hooker testified that that the Investigator told him at the compliance inspection on July 6, 2018, that Respondent had advised him, the Investigator, that the corrective work had been completed. He stated further that the Investigator told him that Respondent had until July 16, 2018, to complete the work but that because Respondent had claimed it had already completed the work and because Respondent had been given every opportunity to perform corrective action, Complainant was not obligated to allow Respondent to return to do further work. 12. Mr. Hooker further testified that the last corrective work performed by Respondent was on June 25, 2018. He acknowledged that on July 12, 2018, Respondent came out to perform corrective work but that he refused to allow them access based on the statements he attributed to the Investigator. 13. Mr. Hooker asserted that audio recordings of the compliance inspection would confirm what the Investigator had told him and would justify his refusal to allow Respondent access to the property on July 12, 2018. The Tribunal recessed the hearing to allow Complainant the opportunity to submit his audio recording of the compliance inspection, which he did. The Tribunal listened to both Complainant’s audio recording as well as the Investigator’s, neither of which were of sufficient quality to hear entire conversations due to wind noise. However, the Tribunal could discern a conversation between Complainant and the Investigator in which the Investigator advised Complainant that if Respondent wanted to come back to do work “after the hearing notice,” by that time Respondent would have had sufficient opportunity to do the work and that Complainant would not be required to allow any further work. 14. Justin Lawson testified on behalf of Respondent that Respondent had completed Directive items 2, 3, 6, and 7 of the Directive and 2, 3, and of the Amended Directive. He stated Respondent never told the Investigator that the corrective work had been completed and indeed sent workers out on July 12, 2018, to complete the corrective work. He further stated that his workers informed him that Complainant would not allow them to perform any work that day. 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 in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

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….

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. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner and potentially in violation of A.R.S. § 32-1154(A)(3). The Investigator testified that only in Directive Item No. 6 was corrected at the time of the July 6, 2018, compliance inspection. There was no dispute that Respondent performed no work after that date. While Respondent contended that it had corrected additional Directive items, Respondent failed to refute Complainant’s evidence that those items had in fact not been corrected. 7. A.R.S. § 32-1154(A)(22). Complainant has 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. Respondent asserted that it had a valid justification for not completing the corrective work, namely, Complainant’s refusal to allow Respondent access to the site on July 12, 2018, and prior to the Amended Directive deadline. There was no dispute that Complainant refused access to allow Respondent to complete the corrective work. Accordingly, the Tribunal finds such refusal of access to be a valid justification for Respondent not completing the corrective work. 8. The circumstances of this case warrant allowing Respondent another opportunity to perform the corrective work. The Investigator acknowledged that a mistake had been made in performing a compliance inspection and issuing a Citation before the Amended Directive deadline had passed. While it is open to question whether Complainant was told that he could refuse Respondent access when he did, the Tribunal believes there was sufficient confusion created by the timing of the compliance inspection and the Citation that could have resulted in a misunderstanding on the part of Complainant. However, while Complainant may have been justified in denying access to Respondent, Respondent was similarly justified in not completing the corrective action at that time. In permitting Respondent another opportunity to perform corrective action, neither party would appear to be penalized by the confusion created. 9. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3), but has failed to establish that it should be disciplined for a violation of A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that Respondent K & L Custom Roofing, LLC, be afforded an opportunity to perform the corrective work in the Directive and Amended Directive. If, on or before 14 days from the effective date of this Order, Respondent provides written proof that is acceptable to the Registrar that it has corrected those items in the Directive and Amended Directive or that Complainant has refused Respondent access to the property to effectuate the corrective work, the Registrar should close the Complaint in this matter. It is further recommended that if, on or before 14 days from the effective date of this Order, Respondent fails to provide written proof that is acceptable to the Registrar that it has corrected those items in the Directive, or that Complainant has refused Respondent access to the property to effectuate the corrective work, the Registrar should suspend Respondent’s License No. 315345 for a period of two days. 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, November 14, 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