ALJDEC decisions subject to certification as final

2019A-04673-CHC-ROC · Registrar of Contractors · 2020-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nancy Parin Defeo,

COMPLAINANT

Crest Contracting LLC,

License No. ROC 312053, 312052, 321107,

RESPONDENT

No. 2019A-04673-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2020

APPEARANCES: Complainant Nancy Parin Defeo appeared on her own behalf. Thomas Watson, General Manager, appeared on behalf of Respondent Crest Contracting LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Crest Contracting LLC (Respondent) is the holder of License Nos. 312053, 312052, and 321107 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 16, 2019, Nancy Parin Defeo (Complainant) entered into a contract with Respondent for the removal of her tile roof, installation of new underlayment, and replacement of the tile roof. The total cost of the project was $4200.00 and Complainant paid a $2100.00 deposit.

On or about September 16, 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 Arlo Houston. On or about October 21, 2019, Investigator Houston conducted a jobsite inspection.

On or about November 13, 2019, Investigator Houston issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 2, 2019.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for prior discipline or administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Metal flashing was to replaced around the chimney and at front porch where it joins the house – only flat metal and caulking. Nothing like it was before.”

Investigator’s Observation: Verified. At time of inspection I observed that the junctions of the roofing system around the chimney and the junction of the roofing system at the underside of eave, located above the porch, were not properly flashed with metal flashing.

. . . .

Complaint Item 4: “I called them back 3X to fix + clean up and there is still garbage and cement mess. My broom left on roof – plastic bucket + soda can in the gutter, cement debris around yard.”

Investigator’s Observation: Verified. At time of inspection I observed cementitious construction debris on the brick paver patio and in areas of the yard.

. . . .

Complaint Item 8: “Debris wasn’t cleaned off tile or out of gutters until I called them back 2X.”

Investigator’s Observation: Verified. At time of inspection I observed substance on rake tile to East of ridge located above porch.

. . . .

Complaint Item 9: “2X2 metal drip stop primed – not done.”

Investigator’s Observation: Verified. At time of inspection I observed that the 2 X 2 metal drip edge had not been primed as specified in contract.

. . . .

Complaint Item 11: “New pipe jacks and T-tops were not replaced and were poorly tiled around.”

Investigator’s Observation: Verified. At time of inspection respondent advised new pipe jacks and Ttops were ordered and would be replaced.

. . . .

Complaint Item 14: “I had to call them back to re-cement the ridge tile it was done so poorly + put in missing tiles.”

Investigator’s Observation: Verified. At time of inspection I observed the mortar cap on the North end of the ridge tile was poorly completed.

On or about December 16, 2019, Investigator Houston conducted a jobsite inspection on additional issues raised by Com0plainant.

On or about December 18, 2019, Investigator Houston issued a second written directive, with a deadline of January 10, 2020 that added the following items to be addressed by Respondent:

Complaint Item 1: “exposed underlayment with holes in it (this is where my roof is now leaking into my double brick wall and has affected the interior wall ).”

Investigator’s Observation: Verified. At time of inspection I observed areas of underlayment on the East side of the Northern rake edge of the tile roof with holes in it and areas of underlayment in this area that did not extend to the edge of the decking of the roof.

. . . .

Complaint Item 2: “underlayment that is turned up along the edges instead of secured over the edge.”

Investigator’s Observation: Verified. At time of inspection I observed that the underlayment on the North side of the Western rake edge of the tile roof was not securely fastened to the decking and was curled up under the rake tiles.

. . . .

Complaint Item 3: “cracked tiles.”

Investigator’s Observation: Verified. At time of inspection I observed many broken tiles.

. . . .

Complaint Item 4: “shoddy workmanship overall with jagged tiles and valleys occluded with tile, poor alignment.”

Investigator’s Observation: Verified. At time of inspection I observed tiled roof valleys that were not reasonably straight or aesthetically acceptable and areas of unsightly mortar in many areas.

Following the issuance of the second written directive, Respondent attempted to perform some corrective work. On January 17, 2020, after the deadline in the second written directive expired, Investigator Houston conducted a compliance inspection. Investigator Houston noted all of the items in the written directives had not been completed.

At that time, the parties agreed that Respondent could continue to work on the project in an attempt to address all the items in the written directives.

On February 11, 2020, Investigator Houston reopened the complaint and on March 4, 2020, he referred the matter to the legal department.

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 Houston testified that he conducted a prehearing inspection on May 5, 2020. At that time, Investigator Houston noted that a new roof had been put on the house; however, he noted that not all of the work in the written directives was completed.

Ms. Defeo testified as her ongoing issues with Respondent’s work on the project. Ms. Defeo noted that her existing tile roof had “clay-lite” tiles and that Respondent said they were familiar with them and would be able to replace broken tiles if needed. Ms. Defeo discovered that Respondent used regular tiles, but charged her the cost of the “clay-lite” tiles. Ms. Defeo stated that Respondent was contractually obligated to remove the existing tiles and underlayment, examine the decking, replace the decking as necessary, install new 40 pound underlayment, and replace the tile roof. However, during the corrective work being done, Ms. Defeo discovered there were areas of the decking that were rotted and had not been replaced. Ms. Defeo also noted that because the Registrar cannot make a contractor remove work to inspect the underlying surface, she did ask Respondent to stop work on one occasion to ensure that Investigator Houston had an opportunity to observe the project before Respondent continued.

Mr. Watson acknowledged that there were issues on the project. Mr. Watson noted that after the compliance inspection and before the prehearing inspection, Respondent completely removed and replaced the roof to ensure the work was done properly.

Administrative notice is taken of Respondent’s prior License record on June 3, 2020. Such prior License record reflects that Respondent’s License No. 312053, was first issued on March 15, 2017; is active; and has no open complaints, has one resolved/settled complaint, and has one complaint resulting in discipline against its license. Such prior License record also reflects that Respondent’s License No. 312052, was first issued on March 15, 2017; is active; and has no open complaints, has one resolved/settled complaint and has no complaint resulting in discipline against its license. Such prior License record also reflects that Respondent’s License No. 321107, was first issued on August 7, 2018; is active; and has no open complaints, has one resolved/settled complaint and has no complaint resulting in discipline against its license.

CONCLUSIONS OF LAW

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

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 appropriately 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 suspend Respondent’s License Nos. 312053, 312052, 321107 for a period of five days.

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)(7), 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.

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-137160-45720000Done this day, June 4, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000