ALJDEC decisions subject to certification as final

2021A-01693-CHC-ROC · Registrar of Contractors · 2021-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Antoni Louw ,

COMPLAINANT,

v.

Rock Roofing LLC

License No. ROC 160029,

RESPONDENT.

No. 2021A-01693-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 27, 2021 at 9:00 AM.

APPEARANCES: Antoni Louw (“Complainant”) appeared on his own behalf. Jesús Santana appeared on behalf of Rock Roofing LLC (“Respondent”) with Kimberly Musgrove as a witness. Michael Springer appeared on behalf of the Arizona Registrar of Contractors. Leslie Santana and Javier Valenzuela observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On February 12, 2001, the Registrar issued License No. 160029 for Specialty Dual CR-42 Roofing contracting to Respondent. Respondent’s address of record for the license is 18002 S Golden Valley Dr. Sahuarita, AZ 85329. Javier Valenzuela is listed as the Qualifying Party and Member on the license.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 160029, as reflected on the Registrar’s public website. Such prior license record reflects that Respondent’s license is active and currently renewed through February 28, 2023. The license has been disciplined on one (1) prior occasion, and there has been one (1) case that was settled or otherwise resolved with the license. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $25,000.00 surety bond for the license issued through Merchants Bonding Company Mutual, effective November 06, 2009.

On April 19, 2021, the Registrar received Complaint 2021-01693 filed by Complainant alleging poor work performance of a residential roofing construction project for a new build. Attached to the complaint were copies of the May 07, 2020, contract agreement between the parties, an invoice, proof of payments, and repair estimates from other licensed contractors.

On April 21, 2021, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on May 12, 2021, at 12:30 p.m.

On October 05, 2020, Registrar investigator Mike Springer (“Investigator Springer”) reviewed the contract agreements between the parties, inspected the work that had been done on the projects to date, and took 24 photographs of the project. When he was finished, Investigator Springer drafted Jobsite Inspection Notes. Ultimately, Investigator Springer substantiated 1 of Complainant’s 4 complaint items. Specifically, Investigator Springer found that complaint item 1was in need of remediation by Respondent.

On May 13, 2021, Investigator Springer issued a Written Directive from the Registrar (“Directive”) to Respondent based on the workmanship allegations he substantiated during his jobsite inspection. Respondent was put on notice that he had until 5:00 p.m. on June 17, 2021, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On June 21, 2021, Investigator Springer issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site on July 01, 2021, at 10:30 a.m. Later that day, Investigator Springer rescheduled the Compliance Jobsite Inspection for June 24, 2021, at 10:30 a.m. due to a scheduling conflict of one of the parties.

On June 24, 2021, Investigator Springer inspected the workmanship complaint item previously identified for remediation. When he was finished, Investigator Springer drafted Compliance Jobsite Inspection Notes. Ultimately, Investigator Springer determined that the substantiated complaint item remained at issue and had not been satisfactorily remediated by Respondent.

On June 24, 2021, Investigator Springer escalated Complaint 2021-01693 to the Registrar’s legal department with a Citation Recommendation.

On June 28, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until July 13, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On July 13, 2021, the Registrar received Respondent’s Answer whereby Respondent alleged, “We have remediated all of the items in the directive and follow up requirements as of Saturday, July 10. We are currently working with the home owner to replace the items damaged when coating fell, this should be closed out end of week the homeowners are having the paver company go out but have not followed up on status.”

On July 14, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on August 31, 2021. Per the July 27, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant called Investigator Springer as a witness and testified on his own behalf. Respondent called Katee Parton Jesús Santana and Kimberly Musgrove as witnesses. The Registrar’s agency file was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 3855 N. Whip Tail Wash Tucson, AZ 85749.

On or about May 15, 2020, the parties entered into a contract agreement whereby Complainant agreed to tender $23,950.00 to Respondent for the installation of a new roof on his newly built residence. Complainant paid for the project in full.

On June 01, 2020, work on the project commenced. The work was completed in September 2020.

Complainant submitted a workmanship complaint to Respondent prior to submitting his complaint to the Registrar. Because Complainant was not satisfied with Respondent’s corrective work, Complainant submitted his complaint to the Registrar.

On April 20, 2021, after the Registrar received Complaint 2021-01693, Investigator Springer asked Complainant to submit an itemized list so that all of his complaint items could be identified properly. On April 21, 2021, Complainant provided Investigator Springer with seven (7) complaint items. Complaint items 4- 7 were merged together as they were all related and based on the same allegation.

During the subsequent Directive compliance period, Respondent made attempts to perform corrective work. However, a 5-gallon can of paint was dropped from atop Complainant’s roof that caused additional damage to Complainant’s property. Respondent was unable to complete the original repairs or repair the newly damaged items prior to the expiration of the Directive compliance deadline.

Although Respondent subcontracted out most of the repair work that was needed as a result of the paint can accident, those trades were unable to complete remediations prior to the expiration of the Directive compliance deadline.

On October 26, 2021, Investigator Springer conducted a Prehearing Jobsite Inspection at the project site and confirmed that no additional corrective work had been performed by Respondent.

In closing, Complainant opined that in the 131 days since the Directive had been issued by the Registrar, Respondent had not taken sufficient affirmative steps to remediate their project. Complainant prayed for disciplinary action from the Registrar against Respondent’s contracting license, as well as access for recompense from the Registrar’s Recovery Fund.

Respondent declined to provide a closing argument.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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 shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in the case at bar are not in dispute.

It is undisputed that the parties had a contractual residential roofing agreement for which Complainant paid Respondent in full. It is also undisputed that a result of Respondent’s poor workmanship, the Registrar issued a Directive that required compliance by June 17, 2021. It is further undisputed that Respondent had not satisfactorily remediated the project by the time Investigator Springer’s compliance jobsite inspection, took place. Nor had Respondent addressed the additional damage it caused to Complainant’s property, albeit accidently, by that date.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent’s opinion that the repairs Respondent made were sufficient to satisfy the Registrar’s workmanship standards, does not sustain the requisite burden of proof.

Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Rock Roofing LLC, ROC License No. 160029, be suspended for four (4) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).

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, November 12, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors