ALJDEC decisions subject to certification as final

2020A-00943-CHC-ROC · Registrar of Contractors · 2020-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shirley Ann Lester

COMPLAINANT

Bill’s Awnings Inc,

License Nos. 266610, 090162

RESPONDENT

No. 2020A-00943-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2020

APPEARANCES: Complainant Shirley Ann Lester, appeared on her own behalf via Google Meet. Daniel Tharp for appeared via Google Meet on behalf of Respondent Bill’s Awnings, Inc. Albert Bernal, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Bill’s Awnings, Inc. (Respondent) is the holder of License Nos. 266610, 090162 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 17, 2018, Shirley Ann Lester (Complainant) signed a contract with Respondent for repair of her awnings and replacement of her roof.

On or about February 24, 2020, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Randy Morris. The original inspection was performed on April 1, 2020.

Investigator Bernal then issued a written directive on or about April 3, 2020 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 May 4rd [sic], 2020.

. . .

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

Compliance Item: 1 - Damage roof was replaced. New roof has numerous leaks all over.

Investigator’s Observation: I observe various gaps (daylight coming through the roof) on the area along the (beam) gutter section. After water leak testing different areas of the residence roof for approximately 45 minutes the carport roof started to leak inside the carport area along the gutter. I also noted various areas on the roof that were leaking along the carport wall (transition from house to carport roof). Roof water leaks were noted approximately 16” out from the wall (carport area) and approximately 8’, 14’, 17’, 27’. These measurements were taken from the front corner of the house towards the back of the house by the side door. The shed roof also presented a water leak at the back wall on the left (east) side upper corner. I noted a water leak at the covered patio roof as well, and it was located approximately 6’6” in from south east corner (back wall) and 2’ out form the wall.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Gutters on new awnings are not draining properly. Investigator’s Observation: I noted the gutter on the carport, and shed side of the residence was draining some water out the downspout located at the end of the wall ( shed area) but, water leaked from behind of the gutter into the inside of the carport during the water leak test.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, no attempts were made by Respondent to fix the leaks and the gutters prior to the May 4, 2020 deadline.

On June 4, 2020, Investigator Bernal performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Bernal noted that Respondent failed to comply with both Compliance Items. See Compliance Jobsite Inspection Notes.

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).

Complainant testified that in July 2018 a monsoon storm had ripped her existing sunshades out of the concrete. On October 17, 2018, she originally signed a contract with Respondent to install new sunshades, gutter downspouts and to repair the awning over the patio.

Complainant testified that about a week later she entered into an agreement for extra work whereby Respondent would clean and prepare the existing roof, install a metal drip edge, apply 1 inch Urethane foam and apply coating with granules.

Complainant testified she had granted many extensions to Respondent to complete the work.

Regarding the workmanship, Complainant testified that prior to the work there were no leaks in the shed, the driveway, or the kitchen, but after Respondent’s work, leaking commenced.

Finally, Complainant testified that she was unaware if any corrective work had been completed.

Mr. Tharp testified that he did not offer warranties on awnings, due to their vulnerable nature. He further testified that there was no way to stop all leaks when it comes to awnings.

In addition, Mr. Tharp testified that he installed new pans and put “double” flashings over the awnings. He also testified that he fit the new awnings into the old frames, and that he used the closest thing he could find to make it work.

Mr. Tharp testified that he did not complete the corrective work within the timeline as he did not know how to complete the same.

Finally, Mr. Tharp testified that about two weeks prior to the hearing he made the requested repairs, but provided no evidence regarding the same.

Administrative notice is taken of Respondent’s prior License record on August 12, 2020. Such prior License record reflects that Respondent’s License No. 266610 was first issued on July 4, 2010, is currently suspended due to non-renewal. Such prior License record also reflects that there is 1 open complaint, namely the present complaint. As to Respondent’s License No. 090162, that License was first issued on June 19, 1991, and is currently active with no history of complaints.

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. Water leaks were present in the carport and the shed and water was leaking from behind the gutter into the carport. Further, Respondent simply fit the new awnings into the old frames in hopes that it would work, rather than seek alternatives. 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 failed 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 Nos. 266610, 090162 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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 27, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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