ALJDEC decisions subject to certification as final

2018A-3707-ROC · Registrar of Contractors · 2018-12-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2018, 1:00 P.M. APPEARANCES: Complainant Yolanda T. Romero appeared on her own behalf; Dennis Rosen, Esq., appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Rafael Tovar Roofing Corp. (Respondent) is the holder of License Number 126193 issued by the Registrar of Contractors (Registrar). 2. On or about August 13, 2018, Yolanda Romero (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of a new roof by Respondent at a residence in Tucson, Arizona (“project”). The Complaint reflected a contract amount of $12,787.63. 3. The Registrar performed an inspection of the project on September 7, 2018. Thereafter, the Registrar issued a Directive, dated September 7, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by September 24, 2018, as follows: Complaint Item 1 – “Old shingles were removed from entire house and patio crew left did not cover roof it rained and master bedroom wall got wet water was coming through window.” This was described to be a water leak above the master bedroom window, and the related damage to the drywall on the ceiling, wall, and in the window sill area. Complaint Item 6B – “…I told Marty did not want any patching and they patched Marty came with some gadget to see about moisture.” This was described to be white roof patching material on the flat roof areas and on the flashing around the fireplace, and exposed black roof patching material around a skylight. All roof patching should blend in color with the surrounding roof. 4. After the Registrar was informed that no corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated October 10, 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)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract and violation of A.R.S. § 32-1124(B) for failure to include license number in bid); c. 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 December 11, 2018, at 1:00 P.M. 6. At the December 11, 2018, hearing, Complainant Yolanda Romero testified on her own behalf. Respondent presented the testimony of Rafael Tovar, license holder, and Marty Riesgo, project manager. John Smith, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s exhibit numbers 0001 - 0061.[1] 7. At the inception of the hearing, Respondent moved to dismiss the Complaint on the ground that Complainant had failed to submit a Disclosure Statement. Complainant responded that she was unaware that a Disclosure Statement had been required. The Tribunal denied Respondent’s motion to dismiss but ruled that it would exclude any witnesses of Complainant not previously disclosed (other than Complainant herself) and any exhibits of Complainant not previously disclosed. Complainant indicated that she had no witnesses present other than herself and the Investigator and that the only exhibits she had planned to submit were photographs of the roof. 8. 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. He specifically testified that at the initial inspection, he performed a water test near the skylight above the master bathroom and that he observed no leaking. He stated he did not perform a water test near the patio and back wall above the master bedroom because Rafael Tovar of Respondent had advised him that that area had been leaking and that Respondent would take care of the leak and the damage caused by it. 9. The Investigator further testified that he conducted a compliance inspection on October 5, 2018, and observed that no corrective work had been performed. He stated that he performed a water test along back wall of house which he explained showed leaking and damage therefrom. He stated he also saw some loose shingles that had not been attached. Lastly, he stated that he did a prehearing inspection on December 10, 2018, and observed that no corrective work had been done. 10. Complainant Yolanda Romero testified that the roof had leaked after Respondent’s completion of the work and that it still leaked today. She stated that Respondent came out five times to repair the roof in December 2017, and February, June, and July 2018, and that the roof still leaked. She further stated that Respondent did not contact her again until October 15, 2018, and that she was never contacted by Respondent until after the Directive was issued. She stated that her son and daughter never told her that Respondent had contacted them. She further testified that she had not wanted Respondent to do corrective work because of its unsuccessful previous repairs. 11. Rafael Tovar, license holder of Respondent, testified on behalf of Respondent that he did not dispute the existence of the items in the Directive. He testified that after that roof was installed, Complainant had had a new air conditioning unit installed that replaced a swamp cooler, which he believed caused the leaking. 12. Mr. Tovar further testified that he had always been willing to address the items in the Directive. He stated that he telephoned Complainant, her son, and her daughter 4 or 5 times after he received the Directive. He stated he then sent written communications to Complainant requesting an opportunity to perform corrective work. (Respondent’s Exhibits 0057, 0058, 0059). 13. Marty Riesgo, project manager of Respondent, testified that he had dealt with Complainant’s insurer, State Farm, regarding the estimate of the project. He stated that he had submitted the estimate on old letterhead of Respondent and had not realized that Respondent had a new ROC number. 14. Mr. Riesgo further testified that he had visited the project when it was reported that there was leaking in the master bedroom and he stated that he believed that Respondent had repaired this item. He further stated that he visited the project in July for leaking near the skylight and chimney and he stated that he observed that a new air conditioning unit installation caused fasteners to come loose lifting shingles causing leaking near the skylight. He testified that Respondent repaired this leaking and that when he went back in September 2018 when the Investigator did a water test, the skylight and chimney were not leaking. 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. …

12. Failure in any material respect to comply with this chapter. …

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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive….

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Rule 4-9-108(A) of the Arizona Administrative Code provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) in Chapter requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least nine items as delineated therein. 7. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1124(B) in Chapter requires in pertinent part that:

The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.

8. 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 in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute the existence of the Directive items. Rather, Respondent argued that Complainant’s installation of an air conditioning unit after Respondent completed its work was a cause of the roof leaking. However, the evidence presented was not sufficient to establish that this installation was a cause of the specific leaking identified in the Directive. 9. A.R.S. § 32-1154(A)(12). Complainant has not presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract and with A.R.S. § 32-1124(B) regarding the failure to include the ROC license number in a bid. A.R.S. § 32-1158(A) - Neither party presented evidence of a written contract between the parties. Respondent argued that it believed its contract was with Complainant’s insurer, not with Complainant. A violation of A.R.S. § 32-1158(A) requires that there be a contract “entered into between a contractor and the owner of a property.” While the Tribunal would presume under these circumstances that there was a contractual relationship between Complainant and Respondent, there was insufficient evidence presented for the Tribunal to make such a finding. Accordingly, the Tribunal cannot find that Respondent violated A.R.S. § 32-1158(A). A.R.S. § 32-1124(B) - The Tribunal is persuaded that Respondent’s use of an incorrect license number in its proposal sent from Respondent to Complainant’s insurer was an innocent mistake. (Respondent’s Exhibit 0001). The Register’s web site reflects that this incorrect license number was of a license that Respondent had previously voluntarily cancelled. 10. A.R.S. § 32-1154(A)(22). Complainant has not presented 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 without valid justification. It was undisputed that no corrective work was performed by Respondent after the Directive was issued. Complainant testified that she was not contacted by Respondent until after the Directive deadline had expired. The evidence reflected that Respondent submitted written requests to Complainant to perform corrective work, although all such written requests were dated after the Directive deadline. Respondent also presented testimony that telephone calls were made to Complainant’s son and daughter before the Directive deadline, who were not available as witnesses to confirm or deny that such calls were made. The Tribunal therefore finds that Respondent’s attempts to perform corrective action and inability to proceed with it was a valid justification for not proceeding with corrective action. 11. Accordingly, the Tribunal concludes that Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3). However, because of Respondent’s efforts to perform corrective work, the Tribunal finds that disciplinary action should not be imposed until Respondent is given a meaningful opportunity to correct the Directive items. RECOMMENDED ORDER Based on the foregoing, it is recommended that Respondent Rafael Tovar Roofing Corp., be afforded an opportunity to perform the corrective work in the Directive. If on or before 14 days from the effective date of this Order, the Registrar receives satisfactory evidence that Respondent has corrected the items in the Directive, the Complaint will be closed on the effective date of this Order. If the Respondent fails to make the corrections, the Respondent’s License No. 126193 shall be suspended for two days on the effective date of this Order. If the Complainant refuses access to the Respondent to make the corrections, the Registrar will dismiss the complaint on the effective date of this Order. 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, December 31, 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