ALJDEC decisions subject to certification as final

2019A-01265-CHC-ROC · Registrar of Contractors · 2019-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 1, 2019 APPEARANCES: Roland Segal appeared on his own behalf. Bruno Gomez, Owner and Qualifying Party, appeared on behalf of Respondent Gomez Roofing Services Co. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Gomez Roofing Services Co. (Respondent) is the holder of License No. 262780 issued by the Arizona Registrar of Contractors (Registrar). On or about January 20, 2015, Roland Segal (Complainant) entered into a contract with Respondent for the installation of a new roof. On or about March 13, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. During a jobsite inspection, Investigator Klein performed a water test and determined that the roof was leaking around a buildout area similar to a chimney. Investigator Klein issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32- 1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 24, 2019.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: New roof was placed on the house with 10 year warrantee on foam and 30 year warantee on tile. . . . . Respondent agreed repairs were made within the last two years. Verified leaking at two of the areas and believe the other two areas are leaking as well due to ceiling staining.

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

Following the issuance of the written directive, Respondent did not complete any corrective work. After the deadline in the directive expired, Investigator Klein was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). Investigator Klein testified that the buildout area was a common place for roofs to leak and stated that, in his opinion, that area was the source of the leak in Complainant’s home. Complainant testified that after the roof was installed in 2015, he had a leak in 2017. At that time, Respondent made repairs to the roof. The roof leaked again in October 2018. Respondent again made repairs. Complainant was told that the leaks were corrected, so he paid to have the drywall on the ceilings repaired and repainted at his own expense. Complainant paid $5470.00 to have the corrective work inside the house done. In February 2019, the roof leaked again in the same areas. In March 2019, Complainant filed the complaint with the Registrar. Following the issuance of the Directive, Respondent did not make any attempts to repair the leaks prior to the deadline. In June 2019, after the deadline in the directive expired, Respondent completed more repairs. Complainant again paid for the repairs inside the home caused by the leaking roof, this time paying $2680.00 for drywall repairs and paint. Complainant denied any other contractors worked on the roof as he had been advised that anyone else working on it would void his warranty. Jack Crawford, Project Manager for Respondent, testified as to Respondent’s attempts to correct the issues with the roof. Mr. Crawford noted that at some point he counterflashed the stucco in the area of the buildout as that had not been done previously. Mr. Crawford posited that the water was going down the wall, not through the tile roof. Mr. Crawford stated he was confident that the roof would not leak again. Mr. Crawford maintained that the issue was with the stucco, not the roof Respondent installed. Bruno Gomez, Owner and Qualifying Party of Respondent, testified that he believed Complainant had hired other contractors to work on the roof. Administrative notice is taken of Respondent’s prior License record on August 21, 2019. Such prior License record reflects that Respondent’s License No. 262780 was first issued on February 21, 2010, and is active. Such prior License record also reflects that there was one prior complaint that was resolved/settled and one prior complaint that resulted in discipline against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The evidence established that the leaks were the result of issues with the roof, therefore Respondent’s work was not in conformity with the Registrar’s standards. Accordingly, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. The evidence established that Respondent did not timely complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[2] 5. A.R.S. § 32-1156.01 provides that after a hearing, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. 6. The evidence established that Complainant suffered damages in the amount of $8150.00 for repairs to the water damage inside the home resulting from the water leaks from the roof. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 262780 for a period of one day. It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $8150.00 as restitution pursuant to A.R.S. § 32- 1156.01. It is further recommended that if Respondent fails to pay the entire amount of the restitution on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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 restitution. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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 40 days from the date of that certification. Done this day, August 21, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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.” 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.” [2] 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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