ALJDEC decisions subject to certification as final

2020A-01708-CHC-ROC · Registrar of Contractors · 2020-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joe Palladino

COMPLAINANT

Freedom Roofing Inc

License No. 318267,

RESPONDENT

No. 2020A-01708-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 23, 2020

APPEARANCES: Joe Palladino on his own behalf; Jacob Woods for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On August 17, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on September 22, 2020 at the Office of Administrative Hearings.

The matter was convened on September 22, 2020, at which time the parties agreed to continue the matter, and the hearing was conducted on October 23, 2020.

Through the Notice of Hearing ROC alleges that Respondent Freedom Roofing Inc. may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22).

Freedom Roofing holds license number 318267 issued by ROC. Jacob Woods is Freedom Roofing’s qualifying party.

Complainant Joe Palladino hired Freedom Roofing to replace the roof at a house in Lake Havasu City.

On April 6, 2020, ROC received from Mr. Palladino a complaint against Freedom Roofing alleging poor work on Freedom Roofing’s part.

ROC assigned Investigator Cliff Corlett to Mr. Palladino’s complaint.

On April 20, 2020, ROC informed the parties that the matter had been closed.

In response to an April 28, 2020 email from Mr. Palladino, ROC reopened the matter.

On May 18, 2020, Mr. Corlett conducted a jobsite inspection and determined that there were workmanship deficiencies.

ROC issued to Freedom Roofing a Directive dated May 26, 2020, through which it ordered Freedom Roofing to correct the deficiencies that Mr. Corlett identified and to notify ROC that it had done so by 5:00 p.m. June 25, 2020.

On July 10, 2020, ROC issued a Citation through which it alleged that Freedom Roofing may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22).

The administrative record shows that ROC’s letters to Freedom Roofing were being sent to the wrong address and that ROC’s emails were also not properly addressed. Through an email dated July 20, 2020, Mr. Corlett informed ROC’s legal Department that Freedom Roofing had telephoned him to let ROC know that it had not been receiving ROC’s notifications. Mr. Corlett noted that Freedom Roofing had received the Citation, but Freedom Roofing may not have been aware that the complaint had been reopened in April 2020.

The administrative record shows a change of address form for Freedom Roofing dated March 23, 2020.

In July 2020, the parties exchanged emails through which Freedom Roofing accepted responsibility for any workmanship deficiencies and expressed its willingness to make the required repairs.

Through an email dated July 29, 2020, Freedom Roofing informed Mr. Palladino that it had discovered additional issues that required repair, and that because of the difference in color of different lots of shingles, Freedom Roofing planned to tear off the existing roof and replace it.

On or about September 18, 2020, Mr. Corlett conducted a prehearing inspection. At that time he observed that the roof had been completely and properly replaced, which in his opinion mooted the complaint and Directive at issue. Mr. Corlett noted however that Mr. Palladino raised two concerns related to the new roof.

On September 22, 2020 the parties agreed to continue the matter and to have it convened on October 23, 2020.

On October 22, 2020, Mr. Corlett again inspected the roof. Mr. Corlett provided credible testimony that all workmanship issues had been resolved and the work was acceptable.

At the hearing, Mr. Palladino testified that he had not been aware that Freedom Roofing had been to the house to correct the issues he raised on September 18, 2020.

Mr. Woods testified to the effect that Freedom Roofing acknowledges that there had been deficiencies in its original work, which in his opinion were minor, and that Freedom Roofing had gone beyond that which was required by replacing the roof.

Mr. Woods testified that Freedom Roofing stands behind its work and was willing and able to correct any problems that might exist. Mr. Palladino made clear that he would not allow Freedom Roofing back on his property.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). There was no substantial evidence adduced showing that Freedom Roofing is unscrupulous, unqualified, or financially irresponsible.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

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22. Failure 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. The written directive must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive....

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

The preponderance of the evidence shows that there were deficiencies in Freedom Roofing’s work in violation of Ariz. Admin. Code section R4-19-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

There was no substantial evidence adduced to show that Freedom Roofing violated Ariz. Rev. Stat. section 32-1154(A)(16).

It has not been shown that Freedom Roofing violated Ariz. Rev. Stat. section 32-1154(A)(22) because Freedom Roofing’s failure to comply with the Directive in the time allotted is justified by the fact that it was not receiving correspondence from ROC during the time at issue, and by the fact that it corrected the deficient work in a timely manner after learning that the case had been reopened and a Citation had been issued.

Although ROC has authority to discipline Freedom Roofing’s license because Freedom Roofing has violated Ariz. Rev. Stat. section 32-1154(A)(3), considering that Freedom Roofing has completely replaced Mr. Palladino’s roof and its work meets the workmanship standards, it is appropriate to dismiss this matter without imposing discipline.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-01708 is dismissed.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, November 10, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000