ALJDEC decisions subject to certification as final

2020A-02770-CHC-ROC · Registrar of Contractors · 2021-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lucille Jennerjohn,

COMPLAINANT

Ironwood Engineering & Construction, LLC

License Number ROC 183021,

RESPONDENT

No. 2020A-02770-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 13, 2021

APPEARANCES: Complainant Lucille Jennerjohn appeared on her own behalf. Bruce Jennerjohn, Complainant’s son, was present. James McMillan appeared on behalf of Respondent Ironwood Engineering & Construction, LLC. Arizona Registrar of Contractors Investigator Dennis Bierma was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Ironwood Engineering & Construction, LLC (“Respondent”) is the holder of License No. 183021 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about January 1, 2020, Lucille Jennerjohn (“Complainant”) contracted with Respondent for “tile roof leak repair” and “pipe & vent sealing.” The contract price was $2,500.00.

On or about June 2, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Dennis Bierma. After a July 1, 2020 jobsite inspection, Investigator Bierma issued a letter dated July 22, 2020, informing the parties that the Registrar was closing the Complaint due to the findings at the jobsite inspection, and that Complainant could request that the Complaint be re-opened within six months if the issue recurred. Investigator Bierma’s jobsite inspection notes stated the following:

This inspection was in regards to an allegation of the roof leaking. The Complainant hired the Respondent to fix a leak in the roof. The Complainant still has issues with the roof still leaking.

Complaint Item 1: “Contract was for roof leak repair. Was given a 3 year warranty on leak. Roof still leaks in the same spot.”

Investigator’s Observation: Unverified: I observed the inside of the home in the master bathroom where the leaking had been occurring from the ceiling. I did notice some areas in the ceiling that appeared to have water damage at some point. I was unable to observe any active leaking at that time. I observed the exterior roof area on the home where the leaking had been coming from and where the Respondent had done their work. I performed a water test throughout this area on the roof, using the Complainant’s garden hose. I ran water over the roof for approximately 15-20 minutes, soaking the whole area and letting water run over the area of leaking concern. After running the water, I observed the interior ceiling of the master bathroom and was unable to verify any active leaking at that time.

Complaint Item 2: “Can not get ahold of Jim for long periods of time. This leak has been a problem for 6 months now.”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

On August 18, 2020, Investigator Bierma re-opened the Complaint upon receiving correspondence from Complainant that after a recent rainstorm, the roof continued to leak.

A second jobsite inspection was conducted on September 4, 2020. At this time, another water test was performed on the roof for approximately twenty minutes.

On September 14, 2020, Investigator Bierma 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 October 23, 2020.

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

Complaint Item 1: “Contract was for roof leak repair. Was given a 3 year warranty on leak. Roof still leaks in the same spot.”

Investigator’s Observation: Verified: After conducting a water test, there is still active leaking from the roof into the bathroom of the home.

The following complaint items require no action by the Respondent:

Complaint Item 2: “Can not get ahold of Jim for long periods of time.”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Respondent’s representative, James McMillan, was present for the jobsite inspection. Mr. McMillan agreed that the roof continued to leak and also indicated that Respondent had made previous attempts at repairing the leak, stated that Respondent “did not know how to fix” the leak, and offered Complainant a refund of the money she paid. Investigator Bierma testified that throughout the Complaint process, the parties agreed that Respondent did not know how to repair the leak, and Respondent wanted to settle the matter financially.

Investigator Bierma forwarded the Complaint to the Registrar’s 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(A); and A.R.S. § 32-1154(A)(22).

Investigator Bierma testified consistently with the findings contained in his jobsite inspection notes and the Written Directive. Investigator Bierma testified that Respondent did not dispute the findings, however, “just didn’t know how to correct” the issue and wanted to give Complainant her money back so that she could hire another contractor to make the necessary repairs.

Complainant testified that she wants her roof and ceiling damage repaired and that the damage is now more extensive. Complainant testified that she did not want a refund of her money as the cost of repairs now exceeds the amount she paid to Respondent.

Mr. McMillan testified that the roof on Complainant’s home is 25 years old, in “rough shape,” and that he attempted to repair it in the least expensive way in order to save Complainant money. Mr. McMillan testified that he patched it rather than replace the entire roof. Mr. McMillan testified that he has attempted to repair the roof numerous times and every time he performed work, the area of repair became larger. Mr. McMillan testified that he offered Complainant her money back, but she refused that offer and told him she wanted the roof repaired.

Administrative notice is taken of Respondent’s prior License record on January 27, 2021. Such prior License record reflects that Respondent’s License No. 183021 was first issued on February 27, 2003, and is active. Such prior License record also reflects that there are no open complaints, one disciplined complaint, and one resolved/settled/withdrawn complaint against Respondent’s 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(A).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued and acknowledged that the roof continues to leak. 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. 183021 for a period of two (2) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, January 28, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000