ALJDEC decisions subject to certification as final

2019A-00499-CHC-ROC · Registrar of Contractors · 2019-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2019 APPEARANCES: Tracy Gene Hardy for Complainant; Miguel Angel Valenzuela for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On April 29, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on May 30, 2019 at the Office of Administrative Hearing. The matter was continued and the hearing was conducted on September 26, 2019. 2. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint. 3. Respondent MAV Roofing LLC, holds license No. 232774 issued by ROC. Miguel Angel Valenzuela is MAV Roofing’s qualifying party and a member of the LLC. 4. Complainant Archerland LLC hired MAV Roofing to provide roofing at a house for which Archerland is the general contractor. Tracy Gene Hardy is Archerland’s qualifying party and a member of the LLC. 5. Archerland filed with ROC a complaint against MAV Roofing alleging poor workmanship. 6. In response to Archerland’s complaint, ROC Investigator Gregory Johndrow conducted a jobsite inspection in February 2019. On February 22, 2019, ROC issued to MAV Roofing a Directive ordering MAV Roofing to correct by appropriate means broken seams, possible leaking, and incomplete work. 7. ROC subsequently determined that MAV Roofing had not received proper notice of the complaint against it, and ROC “restarted” the process on February 25, 2019. 8. Mr. Johndrow conducted a second inspection on March 12, 2019. At that time, Mr. Johndrow determined that there were areas in which the roof seams had separated, that there was leaking in the area of two roof drains, and that the project was incomplete and not in compliance with the manufacturer’s specifications. 9. On March 14, 2019, ROC issued to MAV Roofing a second Directive ordering MAV Roofing to correct by appropriate means broken seams, possible leaking, and incomplete work. 10. At a compliance jobsite inspection on March 29, 2019, Mr. Johndrow concluded that MAV Roofing had not corrected the deficiencies ROC ordered it to correct. 11. The parties worked cooperatively to try to resolve the matter, with MAV Roofing refunding to Archerland the cost of the roof and agreeing to install a new roof. 12. MAV Roofing replaced the roof twice, the second time using a GAF system. 13. On September 23, 2019, Mr. Johndrow conducted a prehearing inspection at the house. At that time, Mr. Johndrow observed that the roof was leaking at the roof drains and it was his opinion that the work in the areas around the roof drains and at the flashings for some of the penetrations was not done in accordance with the manufacturer’s specifications. 14. Mr. Johndrow testified to the effect that the water leaking into the house was being absorbed by insulation that was acting as sponge. 15. Mr. Hardy testified to the effect that Archerland has sustained damages as a result of MAV Roofing’s failure to properly repair the roof. These damages include physical damage to drywall and cabinets in the house and additional costs incurred because other trades were not able to complete their work as scheduled. Archerland did not present any evidence to quantify the amount of damage or any estimated cost to repair. 16. Mr. Valenzuela argued to the effect that MAV Roofing should have been afforded an opportunity to correct the leaks after its most recent re-roofing, but was not given a chance to do so. 17. Mr. Valenzuela testified that he thought that Archerland was going to withdraw its complaint once MAV Roofing repaid Archerland and redid the roof. Mr. Tracy testified to the effect that Archerland had expected that MAV Roofing would provide a roof that met the manufacturer’s specifications and that did not leak. 18. Mr. Johndrow acknowledged that MAV Roofing had attempted to repair the roof and that both parties had been cooperative while the matter was pending. 19. Through the Citation, ROC provided that if the act or acts charged in the written complaint were proven at an administrative hearing, then MAV Roofing could be found to have violated Ariz. Rev. Stat. section 32-1154(A)(3) – Ariz. Admin. Code section R4-9-108, and that the Administrative Law Judge presiding over the hearing would also determine whether there was merit to the charge that MAV Roofing may have violated section 32-1154(A)(22). CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The 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.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 9. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

10. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32- 1154(A)(22). 12. The preponderance of the evidence shows that MAV Roofing violated Ariz. Rev. Stat. section 32-1154(A)(3) in that the roof it installed had seams that had separated, that was leaking in the area of two roof drains, and that was incomplete and not in compliance with the manufacturer’s specifications. 13. The preponderance of the evidence shows that MAV Roofing violated Ariz. Rev. Stat. section 32-1154(A)(22) because it did not properly correct the deficiencies that ROC ordered it to correct within a reasonable time after ROC issued the second Directive. 14. Although MAV Roofing did not comply with the first Directive, because MAV Roofing did not receive proper notice before that Directive was issued, its failure to comply is not a violation of Ariz. Rev. Stat. section 32-1154(A)(22). 15. MAV Roofing’s argument that it did not have a chance to correct the roof leaks after the roof was redone the second time is not persuasive because the allegations in the complaint are about the first roof MAV installed. 16. Because MAV Roofing has violated Ariz. Rev. Stat. sections 32- 1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty. 17. That MAV Roofing refunded to Archerland the cost of the roof is a factor in mitigation. 18. Considering the facts and circumstances of this matter, MAV Roofing’s license should be suspended for two days and it should be ordered to pay a civil penalty of $250.00. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order in this matter MAV Roofing LLC’s license number 232774 be suspended for two days; IT IS FURTHER RECOMMENDED that MAV Roofing LLC be ordered to pay to the Registrar of Contractors a civil penalty of $250.00 within five days of the final Order issued in this matter. 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 is forty days after the date of that certification.

Done this day, October 11, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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