ALJDEC decisions subject to certification as final

2019A-05147-CHC-ROC · Registrar of Contractors · 2020-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Ann Thompson,

COMPLAINANT

AJ Builders LLC,

License No. 319665,

RESPONDENT

No. 2019A-05147-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 9, 2020

APPEARANCES: Complainant Barbara Ann Thompson appeared on her own behalf. Mark Millinger, Owner and Qualifying Party, appeared on behalf of Respondent AJ Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

AJ Builders LLC (Respondent) is the holder of License No. 319665 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 18, 2018, Barbara Ann Thompson (Complainant) entered into an agreement with Respondent for the installation of a new roof on her home. The bid/proposal provided by Respondent was signed by both parties and became the contract. The contract did not include Respondent’s ROC license number, the estimated date of completion, or an advisement that Complainant had the right to file a written complaint with the Registrar.

On or about October 11, 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 Jim Dimond. After a jobsite inspection, Investigator Dimond 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 13, 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 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.

The complainant provided a lengthy narrative and after the inspection, I have culled out what the actual allegation items are.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: During project, a storm rained on the bare roof. The drywall at the underside of the carport fell down. The contractor fixed the drywall and the complainant’s car.

The drywall is experiencing failures at the seams.

Investigator’s Observation: The complainant provided photographic evidence of the drywall failure and what appears to be water penetration through the joints of the roof substrate sheathing.

The complainant’s relayed that the respondent had the complainant vehicle detailed and corrected.

The complainant also relayed that the respondent attempted to use partial sheets of drywall for the repair but used full sheets after the complainant protested.

The respondent also applied the drywall texture.

There are cracks at the seams and the respondent shall correct the cracks one time in the first year.

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Complaint Item 2: Contractor did not provide us the warranty

Investigator’s Observation: The warranty should be though the shingle manufacturer however the manufacturer of the shingles is not known at this time.

Additionally, the respondent’s contract does not comply with ARS 32-1154.A.(1) no license number, (4) No approximate completion date, (6) does not include applicable taxes and (9), notice of the right to file an ROC complaint. Minimum elements of a contract warning letter and license display are included with this directive.

The respondent shall provide the complainants the warranty information in an appropriate manner.

Governing Rule: Statute ARS 32-1154.A.(12)(namely ARS 32-1158.(A)(B) and ARS 32-1124.B)

Complaint Item 3: Work was not performed as contracted and some of the work is poorly done.

Investigator’s Observation: At the inspection the complainant pointed out that the respondent did not put new drip edge on nor did he use new vent roof jacks as contracted.

I noted that the carport had some new drip edge installed however the majority of the project had not had the drip edge replaced.

I also noted that the roof jacks appear to have been reused and have open nail holes indicating they are not new.

At the valley of the northern portion of the house toward the west, it appears that the material below the shingles is rippled and needs corrected.

Nails completed penetrated soffit but weren’t nipped and cleaned up after installation.

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Following the issuance of the written directive, Respondent did not attempt to contact Complainant regarding the corrective work. After the deadline in the directive expired, Investigator Dimond 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)(2)(a); 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. § 32-1158; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B); and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified that during his prehearing inspection on June 4, 2020, nothing on the project had been corrected.

Complainant testified that during the project, the roof leak and caused the drywall in the ceiling of the carport failed and collapsed onto her vehicle. Complainant stated that the issues with the roof remained to this day. Complainant denied that she asked Respondent to do less than the full scope of work to save money. Complainant asserted that Respondent did not attempt to contact her after the directive was issued.

Randy Thompson, Complainant’s husband, testified that the roof replacement was the result of an insurance claim and, because Respondent would not take responsibility for the drywall failure, he had to file a new claim with his insurance company for that issue. Mr. Thompson denied that he asked Respondent to perform less than the entire scope of work to allow him to keep some of the insurance proceeds. Mr. Thompson also stated that Respondent did not attempt to contact him after the directive was issued.

Mr. Millinger testified that Complainant wanted to “cash in on some items” under the contract and asked Respondent to reuse existing materials rather than buy new materials. Mr. Millinger stated that if he needed to go back out to the jobsite and do repairs, he would.

Administrative notice is taken of Respondent’s prior License record on June 29, 2020. Such prior License record reflects that Respondent’s License No. 319665 was first issued on May 9, 2018, and was suspended on June 2, 2020. Such prior License record also reflects that there were no other open complaints and one prior complaint against Respondent’s license that resulted in a discipline

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 did not perform all of the work required under the contract. Therefore, Complainant established that Respondent departed from the plans in violation of A.R.S. § 32-1154(A)(2)(a).

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’s contract did not include its ROC license number, the estimated date of completion, or an advisement that Complainant had the right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent’s contract did not include all the required elements of a contract and did not include its license number in violation of A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158 and A.R.S. § 32-1124(B).

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 suspend Respondent’s License No. 319665 for a period of ten 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 29, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000