ALJDEC decisions subject to certification as final

2019A-00151-ROC · Registrar of Contractors · 2019-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2019, at 8:30 a.m. APPEARANCES: Michael Smith (“Complainant”) appeared on his own behalf; M A V Roofing, LLC (“Respondent”) appeared through Miguel Angel Valenzuela, its member/qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website,[1] on May 31, 2007, the Registrar issued License Nos. ROC 232774, Class CR-42 for Specialty Dual Roofing to Respondent. Respondent’s address of record is 3640 S. Campbell Ave., Ste. 1, Tucson, Arizona 85713-5089. 2. On January 10, 2019, Complainant filed a complaint with the Registrar, alleging that Respondent had committed poor work in performing a November 29, 2017 contract to install a new roof on Complainant’s house at 1007 S. Desert Senna Loop, Tucson, Arizona 86748. According to the complaint, Respondent had completed installation of the new roof in January 2018, two days after starting the job. Complainant provided Respondent’s office address on S. Campbell Ave. on the complaint form. 3. The complaint was assigned to the Registrar’s Investigator Mike Springer for investigation. Investigator Springer performed a jobsite inspection, which Respondent did not attend. On February 6, 2019, Investigator Springer on behalf of the Registrar issued a directive, requiring Respondent to correct Complainant’s complaint that “[t]he roof started leaking in two places during the snow on January 1st and 2nd 2019” before February 21, 2019, at 5:00 p.m. Investigator Springer sent the Directive to Respondent at 10570 E. Blue Pearl Ct., Tucson, Arizona 85747. 4. After Respondent did not comply with the directive, Investigator Springer referred the matter to the Registrar’s Legal Department. On February 27, 2019, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(22). The Citation shows that the Registrar sent it to Respondent at 10570 E. Blue Pearl Ct., Tucson, Arizona 85747. 5. On February 27, 2019, Respondent’s qualifying party/member Miguel Angel Valenzuela filed a written answer to the Citation, acknowledging that it had completed the roof replacement on December 12, 2017, but stating that it was not responsible for the leaks because, when Respondent sent its estimator out to respond to Complainant’s complaint on January 19, 2019, the estimator discovered that the roof had been coated by a third party. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On March 4, 2019, the Registrar issued a Notice of Hearing, setting a videoconference hearing from the Registrar’s Tucson office on April 16, 2019. The Registrar sent the Notice of Hearing to Respondent at 3640 S. Campbell Ave., Ste. 1, Tucson, Arizona 85713-5089. 7. A hearing was held on April 16, 2019. Complainant submitted thirteen exhibits and testified on his own behalf. Respondent presented the testimony of two witnesses: (1) Mr. Valenzuela; and (2) Priscilla Campos, Respondent’s secretary. / / / / Additional Hearing Evidence 8. Complainant acknowledged that, in June 2018, approximately six or seven months after Respondent had replaced the roof, he hired an unlicensed contractor who was not a roofer to apply a reflective coating all over the entire roof. Complainant explained that the roofing material that Respondent applied was not bright enough and that he always has reflective coatings applied to the roofs on his houses to mitigate the summer heat. Complainant testified that Respondent did not tell him that he could not apply the coating. 9. Complainant testified that, in his opinion, the application of the reflective coating did not cause the leaks because the roofing that Respondent applied did not reach far enough under the Z-strip and the roof and was not attached at the roof edging. 10. Complainant testified that because the house is under contract for sale, he was required to hire another contractor to replace the roof. Investigator Springer testified that when he performed a prehearing jobsite inspection, the roof had been replaced. Complainant testified that the contractor whom he had hired to replace the roof in 2019 showed him numerous instances of poor workmanship in Respondent’s application of the roof. 11. Mr. Valenzuela testified that the roof that Respondent installed in 2017, had a five-year warranty. If Complainant had contacted Respondent before he had his unlicensed contractor install the reflective coating, Respondent would have consulted with the contractor to provide information on the best coating to apply and the best way to apply the coating and provided assistance to prevent the roof from being damaged. The first step in applying a coating is pressure- washing the roof, but Mr. Valenzuela did not know what PSI the unlicensed contractor used to clean the roof. He also does not know how the unlicensed contractor sealed penetrations. Mr. Valenzuela pointed out that, if the roof that Respondent installed was so deficient, it should have been apparent to the unlicensed contractor who applied the reflective coating. 12. Mr. Valenzuela testified that Respondent has not used the address on Blue Pearl Court for at least six years. Mr. Valenzuela testified that, although Respondent was notified of Complainant’s filing of the complaint, it did not receive any notice of the jobsite inspection or the directive. Mr. Valenzuela testified that, if Respondent had received the directive, it would have attempted to resolve Complainant’s complaint. The only reason that Respondent filed a timely written answer to the Citation was that it had contacted the Registrar. Respondent has been licensed since 2007, it has never before received a complaint from a consumer[2] and it takes its contractor’s license seriously. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[7] 4. A.R.S. § 32-1155(C)(2) provides that “[t]he registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if . . . [t]he contractor's work has been subject to neglect, modification or abnormal use.” (Emphasis added.) Arizona courts have held that the use of the work “shall” in a statute usually means a mandatory provision: The use of the word “shall” in a statute usually indicates the legislature intended a mandatory provision. Ins. Co. of N. Am. v. Superior Court (Villagrana), 166 Ariz. 82, 85, 800 P.2d 585, 588 (1990). . . .

A mandatory construction will require that litigation involving substantial rights of both the State and appellees must be dismissed without a determination on the merits. . . .

Joshua J. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 417, 421 ¶ 11, 286 P.3d 166, 170 (App. 2012). 5. It does not appear that Investigator Springer was aware that Complainant had modified the roof when the referred the complaint to the Registrar’s Legal Department for the issuance of a citation. Under A.R.S. § 32-1155(C)(2), Complainant’s modification of the roof by having an unlicensed contractor apply a reflective coating to the new roof six months after Respondent installed the roof and six months before Complainant reported that the roof was leaking should have prevented the Registrar from issuing the citation in this matter. In any event, A.R.S. § 32-1155(C)(2) prevents the Administrative Law Judge from deciding whether the leaks were caused by Respondent’s poor workmanship or Complainant’s unlicensed contractor’s modification or whether cause exists to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3),[8] namely, A.A.C. R4-9-108,[9] and A.R.S. § 32-1154(A)(22).[10] / / / / RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant Michael Smith’s Complaint No. 2019-00151 against Respondent M A V Roofing LLC’s License No. ROC 232774 shall 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 will be five days from the date of that certification. Done this day, April 18, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). [2] According to the Registrar’s public website, two complaints are pending against Respondent’s license. Given the Registrar’s apparent failure to notify Respondent of the proceedings on Complainant’s complaint at its current address of record, the Registrar may want to ensure that Respondent receives all notices of the second complaint at its current address of record. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] 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.” ” [9] 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. [10] 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.”

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