ALJDEC decisions subject to certification as final

2021A-00952-CHC-ROC · Registrar of Contractors · 2021-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sandra Kay Crawford,

COMPLAINANT

Hermes Contracting, LLC,

License No. ROC 323607,

RESPONDENT

No. 2021A-00952-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 14, 2021

APPEARANCES: James B. Reed, Esq. represented Complainant Sandra Kay Crawford who was present for the hearing. James Hermes appeared on behalf of Respondent Hermes Contracting, LLC. Arizona Registrar of Contractors Investigator Beau Cruz appeared as a witness. Arizona Registrar of Contractors Investigator Doug Barrett observed the proceeding.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Hermes Contracting, LLC (“Respondent”) is the holder of License No. 323607 issued by the Arizona Registrar of Contractors (“Registrar”). James Hermes is Respondent’s qualifying party.

Sandra Kay Crawford (“Complainant”) contracted with Respondent for a remodel project at Complainant’s home. The parties’ contract, dated September 27, 2020, specified in pertinent part, “Roof Replacement sheet metal roof” for a price of $12,000.00 and “Paint exterior of residence” for a price of $1,600.00. The contract also called for architectural drawings and permit fees for a price of $2,000.00. The architectural plans for the project call for the installation of a metal roof.

On or about March 4, 2021, the Registrar received a Complaint against Respondent from Complainant alleging numerous items of poor work, as well as financial complaints with respect to the project.

The Registrar assigned the Complaint to Investigator Beau Cruz. After a March 25, 2021 jobsite inspection, Investigator Cruz issued a Written Directive to Respondent that provided in pertinent 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 26, 2021.

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

Respondent is to complete remodel project as per agreement between the parties.

Complaint Item 1: Contractor ("JH") agreed to replace A/C system & 5

windows, enclose porch, install pitched metal roof

Investigator’s Observation: Respondent has failed to complete installation of roof, has not installed metal roof system.

Complaint Item 3: House has been sitting over 4 mos. without the metal

roof-underlayment has to be redone

Investigator’s Observation: Damaged underlayment noted on the front

west part of the roof.

Complaint Item 4: JH required pmts. 7/1/20, 8/17/20, 8/25/20, 9/23/20,

2/1/21 ($38,200) for work delayed/not complete

Investigator’s Observation: Respondent has failed to install metal roof as

stated on plans and paint exterior of structure.

Complaint Item 14: JH has not painted exterior for 6 weeks. Metal roof

cannot go on until after painting gable above roof

Investigator’s Observation: Performed stucco work but has failed to paint

south, east, west and north sides of structure.

Addendum at jobsite inspection, respondent agreed to address.

Complaint Item 24: Installed wrong window blinds in Master Bedroom and

Guest Bedroom.

Investigator’s Observation: Respondent did agree that he replaced

damaged vertical blinds with horizontal blinds and stated that he will install

new vertical blinds. . . . In the spirit of good customer service, respondent stated that he would install the correct window (vertical) blinds Master and Guest bedrooms.

Complaint Item 25: JH refused to have electrician return to install laundry

room fan after he was paid

Investigator’s Observation: Respondent failed to install laundry room

exhaust fan as noted on plans.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: JH never provided a contract-only a very general bid 3

mos. later after work began-implied contract?

Investigator’s Observation: Bid contract was sent to complainant.

Allegation by the complainant, does not implicate workmanship issue for me to observe and report on, included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 3: House has been sitting over 4 mos. without the metal

roof-underlayment has to be redone

Investigator’s Observation: The issue regarding the condition

underlayment is based on opinions of other contractors.

Governing Rule: N/A: The issue regarding the condition underlayment is

based on opinions of other contractors.

Complaint Item 5: For 3 1/2 mos. JH refused to prepare back original

section of roof & eaves to accept metal roof

Investigator’s Observation: Underlayment installed by the contractor

prior to jobsite inspection.

Governing Rule: N/A: Underlayment installed by the contractor prior to

jobsite inspection.

Complaint Item 6: JH hid from me that pitch of new trusses was wrong &

they did not meet trusses in original section

Investigator’s Observation: Reached out to truss manufacturer and,

manufacturer stated that could be feathered. Such was performed and was

passed by the local governing jurisdiction.

Governing Rule: N/A: Passed by the local governing jurisdiction.

Complaint Item 7: JH delayed for 9 mos. every phase of project & lied about reasons he had spent my money

Investigator’s Observation: Allegation by the complainant, does not

implicate workmanship issue for me to observe and report on, included in

these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 8: I was without A/C for almost 6 mos. in hottest temps.

before JH had A/C system installed

Investigator’s Observation: A/C installation was completed prior to jobsite

inspection.

Governing Rule: N/A: Installed by the contractor prior to jobsite inspection.

Complaint Item 9: I was without A/C-heat 5+ weeks before JH had hall

ceiling closed up that was open to the sky

Investigator’s Observation: A/C installation was completed prior to jobsite

inspection.

Governing Rule: N/A: Installed by the contractor prior to jobsite inspection.

Complaint Item 10: JH lied when I asked why west gable attic access/door

was not installed. He said it wasn't on plans

Investigator’s Observation: Such attic access was installed by the

contractor prior to jobsite inspection.

Governing Rule: N/A: Installed by the contractor prior to jobsite

inspection.

Complaint Item 11: JH only put 1 vent on west gable, and no soffits or eaves vents

Investigator’s Observation: Respondent installed three gable vents, one on east side, one on upper east gable and one on west side of residence (P-6, 7 & 9) and, was passed by the local governing jurisdiction twice.

Governing Rule: N/A: Installation of attic venting passed by the local

governing jurisdiction.

Complaint Item 12: JH did not buy underlayment that stucco guys had to

put at corner of wall/back roof, to finish stucco

Investigator’s Observation: Underlayment at corner wall of back roof was

installed by others. The Respondent’s work was subject to neglect,

modification, or abnormal use. For that reason, the Registrar is prohibited

from issuing a citation for the Respondent’s alleged poor workmanship or

alleged departure from applicable building codes. See A.R.S. § 32-1155(D)(2).

Governing Rule: N/A: See A.R.S. § 32-1155(D)(2).

Complaint Item 13: Shoddy/incomplete work had to be redone in multiple

cases

Investigator’s Observation: Allegations in complaint item 13 completed by the respondent prior to jobsite inspection.

Governing Rule: N/A: Allegations in complaint item 13 completed by the

respondent prior to jobsite inspection.

Complaint Item 15: JH changed bid/billing invoice 3 times without

discussion or agreement by me

Investigator’s Observation: Allegation by the complainant does not

implicate workmanship issue for me to observe and report on, and complaint item 15 involves a disputed money amount and, is included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 16: JH dropped $12,000 for metal roof from bid/billing

invoice that I paid on 9/23/20

Investigator’s Observation: Allegation by the complainant does not

implicate workmanship issue for me to observe and report on, and complaint item 16 involves a disputed money amount and, is included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 17: JH accused me of making change orders that I did not

make

Investigator’s Observation: Allegation by the complainant, does not

implicate workmanship issue for me to observe and report on, included in

these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 18: JH said in January 2021 that he waited too long & lost

metal roof bid

Investigator’s Observation: Allegation by the complainant, does not

implicate workmanship issue for me to observe and report on, included in

these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 19: JH demanding $4,775 for stucco redo

Investigator’s Observation: Allegation by the complainant does not

implicate workmanship issue for me to observe and report on, and, complaint item 19 involves a disputed money amount and, is included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 20: JH said he would handle cost of painting new room &

TV room & then strong-armed me to pay $1200 labor

Investigator’s Observation: Allegation by the complainant does not

implicate workmanship issue for me to observe and report on, and complaint item 20 involves a disputed money amount and, is included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Complaint Item 21: JH refused to have painters return to finish baseboard,

door trim & closet door after they were paid

Investigator’s Observation: Allegations in complaint item 21 completed by the respondent prior to jobsite inspection.

Governing Rule: N/A: Allegations in complaint item 21 completed by the

respondent prior to jobsite inspection

Complaint Item 22: JH refused to have electrician return to install bath fan

after he was paid

Investigator’s Observation: Allegations in complaint item completed by

the respondent prior to jobsite inspection.

Governing Rule: N/A: Allegations in complaint item 22 completed by the

respondent prior to jobsite inspection.

Complaint Item 23: JH promised to pay for City of Mesa roll-off but has not

paid & I had to pay it

Investigator’s Observation: Allegation by the complainant does not implicate workmanship issue for me to observe and report on, and, complaint item 23 involves a disputed money amount and difference of opinion between the parties, regarding what was agreed upon. Investigator is unable to offer an opinion and, is included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Investigator is unable to offer an opinion and, is

included in these notes in the interest of administrative completeness.

Following the issuance of the Written Directive and after the deadline in the Written Directive expired, Investigator Cruz contacted Complainant who advised that Respondent did not perform any of the required corrective work. Investigator Cruz also contacted Respondent and Respondent confirmed that no corrective work was performed. Consequently, a compliance inspection was not conducted.

Upon review of the parties’ contract documents, Investigator Cruz observed that they failed to contain the required minimum elements of a contract required by A.R.S. § 32-1158(A). Investigator Cruz testified that the parries’ contract did not contain signatures. The invoices containing the scope of work and pricing lack Respondent’s license number, the estimated date of completion of all work to be performed, and the advisement that the property owner has the right to file a written complaint with the Registrar.

On May 3, 2021, Investigator Cruz issued a WARNING LETTER to Respondent for a violation of A.R.S. § 32-1158(A).

On May 6, 2021, 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), A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Cruz testified consistently with his findings contained in the Written Directive with regard to the items of Complaint that were verified, as well as with regard to the items of Complaint that were not verified.

Investigator Cruz conducted a pre-hearing inspection on July 12, 2021, and verified that Respondent did not perform any corrective work. Investigator Cruz testified that Complainant informed him that she had installed the blinds in the bedroom.

Complainant testified at length about the items listed in the filed Complaint, as well as the exhibits introduced at the hearing. Several of the items, including financial and contract disputes, are outside the scope of this administrative hearing as they are outside of the Registrar’s jurisdiction. Complainant testified that the items specified in the Written Directive, specifically Complaint item numbers 1, 3, 4, 14, 24, and 25, have not been corrected by Respondent.

Complainant testified that she paid Respondent a total of $38,000.00 and that the payment for the metal roof installation was included in the amount paid. Complainant asserted that the failure of Respondent to install the roof caused the interior of the home to be exposed to the outdoor elements.

Complainant testified that in late January 2021 or early February 2021, James Hermes informed her that he had “messed up and it was all his fault” because he waited too long to secure a bid for the installation of the metal roof. Because of Respondent’s delay, prices had increased, and the metal roof could no longer be installed for the agreed upon price. Complainant testified that Mr. Hermes told her that she would need to have a shingle roof installed. Complainant testified that she never agreed to pay more than $12,000.00 for a metal roof and that she did not agree to the installation of a shingle roof.

At hearing, Complainant focused primarily on finances and submitted the contract she executed with a roofing contractor for the installation of a metal roof. Complainant requested this Tribunal enter an Order for reimbursement from Respondent for the amounts specified on the contract for the roof as well as painting in the respective amounts of $12,000.00 and $1,600.00, as well as for the deposit she paid to the replacement roofing contractor in the amount of $8,300.00. In the alternative, Complainant requested that this Tribunal order Respondent to perform the required corrective work. Complainant also requested attorney’s fees.

Mr. Hermes testified that he met Complainant through a mutual friend and believed because of this connection that he did not need a contract for the project. Mr. Hermes asserted that the invoice was only an estimate and that Respondent did not agree to the prices delineated in the estimate. Mr. Hermes testified that prices were increasing due to COVID and consequently, he could not know what the actual costs would be. Mr. Hermes also testified that due to COVID Respondent was having difficulty finding workers.

Mr. Hermes explained that prior to submitting the estimate to Complainant, he had obtained a bid for the installation of a metal roof from a roofing contractor in Apache Junction, and that is what he based the $12,000.00 price upon. However, Respondent did not secure a contract with that roofing company upon Complainant’s acceptance of the bid, and therefore, did not ensure the $12,000.00 price. Mr. Hermes asserted that he “pushed off the contract with the roofing company because he was trying to deal with COVID and workers.”

Mr. Hermes testified that when he realized he could not perform a metal roof installation for the quoted price, he met with Complainant and explained the “skyrocketing costs.” Mr. Hermes testified that Complainant told him that “if probate goes through” she could pay for the metal roof. Mr. Hermes told Complainant “to think about black shingles,” however, she wanted a metal roof. Mr. Hermes testified that he did not commence work on the roof because of the price increase. Mr. Hermes testified that underlayment was not installed because he did not begin the roof installation. Mr. Hermes testified that instead, he installed waterproofing at his own expense.

Mr. Hermes testified that he did not return to the project to install the blinds because Complainant’s friend was “verbally abusive” to him and it was “a hostile work environment.”

Mr. Hermes testified that he “feels he was fired” because Complainant hired another roofer.

Mr. Hermes explained that he did not comply with the Written Directive because he “would do the work but not for free” and he “wanted to re-do the estimate.” Mr. Hermes asserted that he “could not do the job for free.”

Administrative notice is taken of Respondent’s prior License record on July 22, 2021. Such prior License record reflects that Respondent’s License No. 323607 was first issued on February 19, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, zero complaints resulting in discipline, and zero resolved/settled/withdrawn complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent’s work departed from or disregarded the architectural plans without Complainant’s consent due to Respondent’s failure to install the metal roof as specified. Therefore, Complainant established that Respondent violated 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(a).

The evidence established that Respondent’s contract failed to comply with the minimum elements of a contract as set forth in A.R.S. § 32-1158 because the parties’ contract did not contain the parties’ signatures, Respondent’s license number, the estimated date of completion of all work to be performed under the contract, and did not advise Complainant that she could file a complaint against Respondent with the Registrar. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158.

The evidence established that Respondent did not compete the corrective work following the Written 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. 323607 for a period of seven (7) 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.

-54864001

001

-137160-45720000Done this day, July 23, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000