ALJDEC decisions subject to certification as final

2019A-00695-CHC-ROC · Registrar of Contractors · 2019-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2019, at 8:30 a.m. and July 6, 2019, at 1:00 p.m. APPEARANCES: Debra Agor-Calvillo (“Complainant”) was represented by Andrew H. Fried, Esq., Law Office of Andrew H. Fried, PLLC, and Michael J. Vingelli, Esq., Vingelli Law, PLLC; Blue Mountain Custom Builders LLC was represented by James M. Woodrow, Esq., Law Office of James M. Woodrow. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. According to the Registrar of Contractors’ (“the Registrar’s”) public website, on or about December 19, 2014, the Registrar issued License No. ROC 295555, for General KB-2 Dual Residential and Small Commercial contracting to Respondent. Respondent’s member/qualifying party is Lucas Theodore Stamer. No one else is listed on the license. 2. On May 2, 2018, the Registrar issued License No. ROC 319735 for General KB-2 Dual Residential and Small Commercial contracting to Blue Mountain Custom Roofing LLC (“Blue Mountain Roofing”). Michael Wells Daugherty is the member/qualifying party and only person listed on Blue Mountain Roofing’s license. 3. On December 21, 2018, the Registrar administratively suspended Respondent’s License No. ROC 295555 for an Arizona Corporation Commission issue.[1] 4. On or about February 11, 2019, Complainant filed a complaint with the Registrar against Respondent, alleging in fifteen specifically enumerated complaints that it had performed poor work on a $2,732.10 contract to install new underlayment beneath a portion of the tile roof on her house and that, as a result, the roof still leaked. The complaint stated that Respondent had worked on the project between July 17, 2017, and August 2, 2017, that she first noticed moisture in the upstairs bathroom in May 2018, and that after “constant rain” on October 13, 2018, water was dripping from the roof above the bathroom. Complainant stated that the person she dealt with at Respondent after May 2018, was Mike Daugherty. Complainant also stated that she noticed a “new leak near AC” and that she had gotten estimates from other roofing companies for repairs. 5. Complainant attached to her complaint Respondent’s July 17, 2017 estimate, which did not include Respondent’s license number, an estimated date of completion, notice of the property owner’s right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), or the Registrar’s telephone number and website address.[2] 6. The Registrar assigned the complaint to its Investigator John Smith for investigation. On March 7, 2019, Investigator Smith performed a jobsite inspection. According to Investigator Smith’s jobsite inspection notes, Ron Craig appeared on Respondent’s behalf. Mr. Craig introduced himself as a roof consultant hired by Mr. Daugherty to attend the jobsite inspection. 7. On March 7, 2019, Investigator Smith on behalf of the Registrar issued a Directive that required Respondent to correct three items of complaint on or before March 25, 2019, at 5:00 p.m., in relevant part as follows: Complaint Item 8: “…water in the attic dripping from the roof above the bathroom…” Complaint Item 14: “…prior repair was not done correctly and the workmanship was below the standard for roofing repairs...” Complaint Item 15: “…The roof leaked again above the bathroom. Additional drywall needs to be repaired...” The respondent’s representative acknowledged the roof is leaking and needs to be redone.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

You are advised that if your license is suspended for administrative reasons or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

If your license ROC 295555 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

8. On March 26, 2019, Investigator Smith performed a compliance inspection. No one attended the compliance inspection on Respondent’s behalf. Investigator Smith found that Respondent had not complied with the directive. 9. On March 26, 2019, Investigator Smith sent a letter to Respondent, informing it that the Registrar had received information that it had violated A.R.S. § 32-1151, which the letter quoted in relevant part as follows: It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing . . . .[3]

Investigator Smith then forwarded the matter to the Registrar’s Legal Department. 10. On March 27, 2019, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. §§ 32-1124(B) and 32-1158, A.R.S. § 32-1154(A)(17), and A.R.S. § 32-1154(A)(22). 11. Respondent filed a timely written answer to the Citation, denying that any cause existed to suspend or revoke its license because it had hired a properly licensed contractor to repair Complainant’s roof and that the cost of the repair was less than $1,000.00. Respondent attached to its written answer an invoice from Blue Mountain Roofing dated March 27, 2019, in the amount of $731.82 for repairs to Complainant’s roof.[4] 12. The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on June 12, 2019, and July 5, 2019. Complainant submitted five exhibits and presented the testimony of two witnesses: (1) Herself; and (2) Scott Ekstrom, the president/owner of Ralph Hays Roofing Company Inc.[5] Respondent submitted ten exhibits and presented Mr. Daugherty’s testimony. Investigator Smith also testified. Additional Hearing Evidence 13. Complainant testified that in May 2017, she noticed a leak from her roof in the upstairs bathroom. She called her insurance company and it recommended Respondent for the repairs. Respondent subsequently repaired the roof and the drywall damage. 14. Mr. Daugherty testified that he worked for Respondent when it repaired Complainant’s roof. Mr. Daugherty testified that although Respondent recommended that Complainant replace the felt underlayment over the entire roof, she could only afford to replace the underlayment on the roof slope over the upstairs bathroom where the roof was leaking. 15. Mr. Daugherty testified that after Respondent replaced the underlayment on the slope of the roof over the upstairs bathroom, Complainant called to report that a piece of the underlayment was sticking up. Respondent repaired the piece of underlayment and then Respondent did not hear from Complainant until May 2018, when she complained of a leak. 16. Complainant testified that, for the next year, there was no significant rain in Tucson. In May 2018, she noticed moisture in the bathroom and called Respondent. Respondent’s employee Fernando came out and said that he did not see any moisture. 17. Mr. Daugherty testified that Tucson experienced significant rain between August 2017, and May 2018. Blue Mountain Roofing performed many repairs to customers’ leaky roofs. 18. Complainant testified that in October 2018, after a hard rain, she was able to photograph water dripping into the bathroom. Complainant testified that after she contacted Mike, who again sent Fernando out, and that Fernando put tar on the roof, which did not stop the leak in the bathroom, and that the roof started leaking above the air conditioner. Complainant testified that Mike and Fernando came out again and tried to fix the pitch, but the roof was still leaking. She was “done” with Respondent. 19. Complainant acknowledged that on January 24, 2019, more than two weeks before she filed the complaint with the Registrar, she obtained a bid from Ralph Hays Roofing Company Inc. to completely reroof her house for $16,262.00 plus the cost of any plywood that needed to be replaced.[6] 20. Mr. Ekstrom testified that he inspected Complainant’s roof and the interior of her residence in January 2019. Mr. Ekstrom stated that Ralph Hays Roofing does not repair roofs but only does work to replace roofs. If a customer requests a repair, he refers the customer to another contractor. 21. Mr. Ekstrom testified that Complainant’s roof was still leaking below the air conditioning unit in January 2019, although the air conditioning contractor did not see the leak. Mr. Ekstrom testified that he did not see the leak that caused damage to Complainant’s upstairs bathroom. Mr. Ekstrom testified that all the underlayment on Complainant’s roof needed to be replaced. 22. Complainant testified that, after she filed the complaint with the Registrar and Investigator Smith issued the directive, Mr. Craig called her and said he was coming out. Complainant testified that she thought that Mr. Craig meant the he was coming out for the jobsite inspection on Tuesday.[7] Complainant testified that Mr. Craig did not have her permission to attempt to repair the roof. Complainant testified that Mr. Craig came out on Monday to attempt to repair the roof while she was at work. Complainant stated that she did not know whether Mr. Craig had fixed the leak. Complainant acknowledged that at 9:06 p.m. on March 25, 2019, she sent an email to Investigator Smith, stating that “I’m very angry about these people doing this work as they did not have my permission to do it. . . .”[8] 23. Investigator Smith testified that he received an email from Mr. Craig stating that the repairs to the roof had been performed. Mr. Smith testified that he did not make any assumptions about whether the roof had been repaired because he had not had an opportunity to verify the repairs. 24. Mr. Daugherty testified that, because Respondent could not perform repairs to comply with the directive, Blue Mountain Roofing went out three times to perform repairs and that Complainant agreed to the repairs. Ronald Craig contacted Complainant on Blue Mountain Roofing’s behalf to arrange times for repairs. 25. Mr. Daugherty testified that Blue Mountain Roofing’s employee Mr. Craig repaired the one slope of Complainant’s roof on March 25, 2019, that Respondent had repaired in 2017. Respondent provided Blue Mountain Roofing’s photographs of the repairs to the Registrar.[9] Mr. Daugherty testified that the slope that Respondent repaired was not where Complainant’s air conditioner or any penetrations were located. Mr. Daugherty testified that it is standard in the roofing industry to perform a water test after a repair. Mr. Daugherty acknowledged that he was not present when Mr. Craig repaired Complainant’s roof. 26. Mr. Daugherty testified that tile roofs built in the 1990’s and 2000’s were constructed with inadequate 30-lb. underlayment, rather than the 40-lb. underlayment that Respondent used for its repairs of the slope.

27. Inspector Smith did not perform a water test at his March 26, 2019 compliance inspection. Investigator Smith’s notes of his March 26, 2019 compliance inspection state as follows: The day prior to the inspection, the respondent’s representative submitted an email stating the work has been corrected by a licensed contractor. The email contained photos of work being done to a roof. There is no evidence the photos are of this roof, or when the photos were taken. I requested documentation to verify who performed the work, what work was done, and who hired the work to be done. No such documentation has been provided. There is no evidence on site that any corrective has been done. During the initial inspection it was explained to both parties that the respondent cannot perform or hire out the corrective work due to their license being suspended. Compliance Findings: The directive has not been complied with.

As stated on Directive: Complaint Item 8: “…water in the attic dripping from the roof above the bathroom…” As stated on Directive: Complaint Item 14: “…prior repair was not done correctly and the workmanship was below the standard for roofing repairs...” As stated on Directive: Complaint Item 15: “…The roof leaked again above the bathroom. Additional drywall needs to be repaired...” The respondent’s representative acknowledged the roof is leaking and needs to be redone. Observations during the compliance inspection: The interior damage is significantly worse than during the initial inspection indicating continuing moisture intrusion. There is no evidence any work has been done to correct the roof. There are still several tiles not laying flat, the furnace chimney is still missing a storm collar.[10]

28. Investigator Smith testified consistently with his directive and compliance jobsite inspection notes. Investigator Smith testified that neither Mr. Craig nor Mr. Daugherty were listed on Respondent’s license and, therefore, that they were not authorized to represent Respondent.[11] Investigator Smith testified that the directive made it clear that Respondent could not perform repairs or hire others to perform repairs because its license was administratively suspended. 29. Investigator Smith explained that he did not require corrective action on twelve of Complainant’s enumerated complaints because they provided a narrative and did not allege workmanship deficiencies. 30. Investigator Smith testified that Respondent’s license was suspended because it failed to renew the license and did not have a bond. 31. Investigator Smith testified that on May 10, 2019, Complainant informed him that the house had been reroofed. He performed a prehearing jobsite inspection on June 11, 2019, and confirmed that the roof had been replaced, but that the moisture damage to the drywall in the upstairs bathroom remained. 32. Complainant submitted an invoice from Zero Chemicals for $375.00 for a mold inspection on May 2, 2019, and an undated invoice from $2,038.48 from Steamy Concepts, LLC for mold remediation services.[12] Complainant did not submit a report from Zero Chemicals or anyone else that stated that mold was present in the home. 33. Mr. Daugherty testified that Steamy Concepts does insurance work. Blue Mountain Roofing does not use Steamy Concepts because their work is overpriced. CONCLUSIONS OF LAW 1. The administratively suspended status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.[13] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.[14] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[15] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[16] 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.”[17] 4. The record establishes cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12),[18] specifically A.R.S. §§ 32-1124(B)[19] and 32-1158(A),[20] because its July 17, 2017 estimate did not include Respondent’s contractor’s license number, an estimated date of completion, notice of the property owner’s right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), or the Registrar’s telephone number and website address. Since Respondent is out of business, however, no point would be served by requiring it to amend its estimate form to comply with A.R.S. §§ 32- 1124(B) and 32-1158(A). 5. A.R.S. § 32-1154(A)(17) includes among the grounds to suspend or revoke a contractor’s license “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” A.R.S. § 32-1101(A)(3)(a) provides in relevant part as follows: “Contractor” is synonymous with the term "builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to . . . [c]onstruct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(Emphasis added.) Respondent did not establish that Complainant directly or indirectly hired Blue Mountain Roofing to perform the repairs required by the directive. Therefore, Respondent contracted when it hired Blue Mountain Roofing to repair Complainant’s roof. 6. Respondent does not dispute that its contractor’s license was administratively suspended when it hired Blue Mountain Roofing to repair Complainant’s roof. A.R.S. § 32-1154(A)(17) includes among to suspend or revoke a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” Therefore, grounds potentially exist under A.R.S. § 32-1154(A)(17) to suspend or revoke Respondent’s license. 7. Respondent’s written answer to the Citation appears to invoke the so- called handyman’s exemption as a defense to the charged violation of A.R.S. § 32-1154(A)(17) when it stated that Respondent’s contract with Blue Mountain Roofing was in an amount less than $1,000.00. A.R.S. § 32-1121(A)(14) includes among the persons who do not need to possess an active contractor’s license to perform construction work so-called handymen, defined in relevant part as follows: Any person other than a licensed contractor engaging in any work or operation . . . for which the aggregate contract price, including labor, materials and all other items . . . is less than one thousand dollars.

A.R.S. § 32-1121(A)(14) goes on to state, however, that the handyman exemption does not apply to certain work, including subsection (b), which states in relevant part as follows: In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor . . . for the purpose of evasion of this chapter or otherwise.

Because A.R.S. § 32-1155(A) required Respondent to provide a two-year warranty of its repair of the single slope on Complainant’s roof, she was able to file a claim with the Registrar after the roof started leaking in October 2018. The repairs of the leak that occurred a year and a half after Respondent completed its initial repair of the slope are part of its original $2,732.10 contract, not a new or separate contract. Therefore, the handyman exemption does not apply and Respondent’s hiring of Blue Mountain Roofing to perform the warranty work furnishes cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(17). 8. However, Respondent’s unlicensed contracting and Blue Mountain Roofing’s unauthorized attempt to repair the roof do not establish that the repair was deficient. Complainant acknowledged that after Blue Mountain Roofing’s repairs, water was no longer leaking into the upstairs bathroom. Complainant did not establish that the air conditioner is on the same slope that Respondent previously repaired. Complainant did not establish that the poorly placed tiles on Complainant’s roof that were noted on Investigator Smith’s report of his March 26, 2019 compliance inspection were in the area that Respondent initially repaired. The whole roof needed to be replaced in May 2017, and in March 2019, most of the roof still needed to be replaced. Therefore, Complainant did not establish that Respondent failed to repair the slope of the roof or establish cause to suspend or revoke its license under A.R.S. § 32-1154(A)(3),[21] namely, A.A.C. R4-9-108,[22] or A.R.S. § 32-1154(A)(22).[23] 9. Complainant did establish that Respondent failed to have the drywall that was damaged by the original October 2018 leak repaired in the upstairs bathroom, as required by Complaint Item 15 of the directive. Complainant did not establish, however, that mold was present in the bathroom that was Respondent’s responsibility. Therefore, with respect to the damaged drywall, Complainant has established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108, or A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED that on the effective date of the final order in this matter, as a result of Complainant Debra Agor- Calvillo’s complaint in Case No. 2019-00695, Respondent Blue Mountain Custom Builders LLC’s License No. ROC 295555 shall be revoked. IT IS FURTHER ORDERED that Respondent shall be required to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). IT IS FURTHER ORDERED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, Respondent’s license shall be revoked, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, July 19, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] According to the Arizona Corporation Commission’s public website, Respondent’s status was voluntarily terminated on October 5, 2018, and is currently inactive. [2] See Complainant’s Exhibit 3. [3] Respondent’s Exhibit 1. [4] See Respondent’s Exhibit 9. [5] The Registrar issued License No. ROC 047449 to Ralph Hays Roofing Company Inc. on April 17, 1978. Carl Scott Ekstrom is the qualifying party/officer on that license. [6] See Complainant’s Exhibit 2. [7] According to Investigator Smith’s testimony and jobsite inspection notes, the jobsite inspection was on March 7, 2019, which was a Thursday. [8] Respondent’s Exhibit 6. [9] See Respondent’s Exhibit 5. [10] Respondent’s Exhibit 7. [11] Because Respondent was represented by an attorney at the hearing, the Administrative Law Judge did not address the unauthorized representation issue. [12] See Complainant’s Exhibits 4 and 5. [13] See A.R.S. § 32-1154(A). [14] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [15] See A.A.C. R2-19-119(B)(2). [16] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [17] Black’s Law Dictionary at page 1220 (8th ed. 1999). [18] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [19] A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’“ on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [20] A.R.S. § 32-1158(A) provides 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 after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . .

[21] A.R.S. § 32-1154(A)(3) includes among the grounds to suspend or revoke a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

[22] 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.” [23] A.R.S. § 32-1154(A)(22) includes among the grounds to suspend or revoke 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