ALJDEC decisions subject to certification as final

2020A-05972-CHC-ROC · Registrar of Contractors · 2021-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gloria Ortiz Moran ,

COMPLAINANT,

v.

Cityluxe Companies LLC,

DBA: AZ’s Best Roofing,

License No. ROC 286561,

RESPONDENT.

No. 2020A-05972-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 17, 2021

APPEARANCES: Complainant Gloria Ortiz Moran appeared on behalf of herself. Don McElwain appeared on behalf of Respondent Cityluxe Companies, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Cityluxe Companies LLC, DBA: AZ’s Best Roofing (Cityluxe) hold License No. ROC 286561 issued by the Registrar of Contractors (the Registrar).

2. Don McElwain is Cityluxe’s qualifying party.

3. On or about July 14, 2020, Cityluxe agreed to repair Complainant Gloria Ortiz Moran’s roof.

4. On or about July 14, 2020, Cityluxe began work under the contract.

5. On or about July 21, 2020, Cityluxe stopped work on Ms. Moran’s home.

6. On or about December 24, 2020, the Registrar received a complaint from Ms. Moran alleging poor work in connection with a residential repair contract. Through the complaint, Ms. Moran alleged that Cityluxe cut all the sides of her house without her permission. The complaint also provided, “And when it rained last week the rain came through the walls.” See the Registrar’s Administrative Record, pg. 2.

7. On or about January 19, 2021, Registrar Investigator Stephen Lawton conducted a job-site inspection.

8. On or about January 29, 2021, the Registrar issued a Directive to Cityluxe. The Directive provided, in relevant part, as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate

corrective action. 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 March 1, 2021.

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 reasons, 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: When it rains, the Rain came through the walls. Az’s Best Roofing cut all the sides of my house and did not ask my permission.

Investigator’s Observation: It was observed and verified that eaves on all sides of manufactured home had been cut off and exposed interior to the outside elements. Daylight could be seen from the interior of home, allowing rain to enter the residence. It was also discussed that there was no change order to cut the eaves off with the Complainant.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

Complaint Item 2: I got on top of the roof to check it and I saw a hole on the roof and they did not put plywood on it.

Investigator’s Observation: It was observed and verified that the installation of roofing material was not installed per industry standards.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

9. Cityluxe’s license was not suspended during the timeframe for compliance under the Directive. The Registrar suspended Cityluxe’s license after the timeframe for performance under the Directive had expired.

10. Cityluxe failed to correct the Directive items by March 1, 2021.

11. On or about March 9, 2021, the Registrar issued a Citation against Cityluxe’s license. Through the Directive, the Registrar alleged that Cityluxe may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, A.A.C. section R4-9-108(a); A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds the alleged charges are valid, the Registrar may suspend or revoke the license of Cityluxe.

12. Cityluxe filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. On April 8, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on May 17, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

15. A hearing was held on May 17, 2021.

16. At hearing, Ms. Moran testified on behalf of herself. Mr. McElwain testified on behalf of Cityluxe. Investigator Lawton testified regarding his investigation of the compliant and the issuance of the Directive. Investigator Lawton observed that Ms. Moran had rain gutters installed in her home. However, Investigator Lawton opined that the rain gutters were installed to prevent the water from the rain from entering Ms. Moran’s home and that the installation was not a modification of Cityluxe’s work.

17. Ms. Moran explained that Cityluxe performed poor work when it remodeled her home. An individual from Ms. Moran’s church installed rain gutters to prevent the rain from coming into Ms. Moran’s home. Mr. McElwain stated that he did not perform work under the Directive because he was facing a suspension during the timeframe for compliance under the Directive. Ms. McElwain testified to the effect that he did not perform corrective work because he did not believe that he would finish

Ms. Moran’s home by the due date. Mr. McElwain also contended that his work was modified when the rain gutters.

18. The Registrar suspended Mr. McElwain’s license the day after the deadline for performance under the Directive.

19. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 25, 2021. Such prior License record reflects that Respondent’s License No. ROC 286561 was issued on September 3, 2013 and is currently active. Such prior License record shows that there are two open complaints against Respondent’s license. Such prior License record shows that two complaints have resulted in discipline against Respondent.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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, 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)

3. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 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 Cityluxe Companies LLC, DBA: AZ’s Best Roofing’s

License No. ROC for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, May 25, 2021.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors