ALJDEC decisions subject to certification as final

2019A-03961-CHC-ROC · Registrar of Contractors · 2020-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

George Lee Nelson,

COMPLAINANT

Robinson Roofing & Sheet Metal Inc.,

ROC License: ROC 306437,

RESPONDENT

No. 2019A-03961-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2019

APPEARANCES: Complainant George Lee Nelson appeared on his own behalf. Respondent Robinson Roofing & Sheet Metal Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Robinson Roofing & Sheet Metal Inc. (Respondent) is the holder of License No. 306437 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 7, 201, George Lee Nelson (Complainant) entered into a contract with Respondent for the installation of a new roof. The work was completed in September 2017.

On or about August 5, 2019, the Registrar received a Complaint against Respondent from Complainant alleging small leaks in the attic.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow 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 September 9, 2019.

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

Complaint Item 1: "I acually seen small leaks in attic while install new bathroom fans and have separations in interior roof (ceiling) wet spot in bath"

(Complainant's description of the roof leaking around the exhaust vent pipe from the heater.)

The following allegations require no action by the Respondent:

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 306437 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner.

All errors in original.

At the time of the written directive, Respondent’s license was revoked. Therefore, the only means by which Respondent had to resolve the complaint was to reach a financial settlement with Complainant. Following the issuance of the written directive, Respondent made no attempt to contact Complainant. After the deadline in the directive expired, Investigator Johndrow was notified no resolution had been reached.

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). 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 at 8:30 a.m. on December 12, 2019. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The hearing was held on December 12, 2019. Complainant testified on his own behalf.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Johndrow testified that he performed a water test during the jobsite inspection and verified the leak in the roof at the place Complainant identified. Investigator Johndrow also indicated he performed a prehearing inspection on December 10, 2019, and observed that no work had been performed at that time and was informed Respondent had made no attempts to contact Complainant.

Complainant testified that, in March 2019, he was replacing exhaust fans in his bathroom when he observed the leaks in the attic. Complainant stated he had attempted to reach Respondent regarding the leaks, but did not get any response. Complainant verified that Respondent had not made any attempts to contact him after the written directive had been issued.

Administrative notice is taken of Respondent’s prior License record on December 31, 2019. Such prior License record reflects that Respondent’s License No. 306437 was first issued on July 7, 2016, and was revoked on April 10, 2019. Such prior License record also reflects that there was one open complaint and five prior complaints that resulted in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, 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.

The evidence established that Respondent did not attempt to 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 306437.

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.

-54864001

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-137160-45720000Done this day, January 2, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000