ALJDEC decisions subject to certification as final

2021A-01786-CHC-ROC · Registrar of Contractors · 2022-04-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Megan Altair Bettencourt,

COMPLAINANT,

v.

High Quality Roofing LLC

ROC License No. 324364,

RESPONDENT.

No. 2021A-01786-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 25, 2022 at 1:00 PM.

APPEARANCES: Megan Bettencourt (“Complainant”) appeared on her own behalf. Ariel Buelna appeared on behalf of High Quality Roofing LLC (“Respondent”). Jim Dimond appeared on behalf the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On April 28, 2019, the Registrar issued License No. 324364 Specialty Dual CR-42 Roofing contracting to Respondent. The license is currently active and renewed through April 30, 2023. Ariel Buelna Lopez is the Qualifying Party, Member, and Signer on the license. Respondent’s address of record for the license is 333 N. Needles Dr. Prescott Valley, AZ 86314. Respondent has an active $6,750.00 surety bond on the licensed issued by RLI Insurance Company effective April 06, 2021. There is no prior discipline noted for the license, save one open complaint which is presumably Complainant’s and one prior resolved or otherwise settled complaint.

On or about March 08, 2021, Complainant and Respondent entered into a $7,800.00 contract for the installation of a new roof at Complainant’s residence. The parties also contracted to have Respondent install a porch cover and trim trees for $9,300.00. Complainant paid $4,000.00 towards the project.

On September 03 2021, the Registrar received an 18-item complaint from Complainant against Respondent’s License No. 324364 alleging poor workmanship on their project. Attached to the complaint were copies of a bid, an invoice, and proof of payment Complainant issued to Respondent for the project. The Registrar designated it Complaint No. 2021-01786 and assigned to Jim Dimond (“Investigator Dimond”) for investigation.

On April 26, 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 10, 2021, at 10:00 a.m.

On May 06, 2021, the Registrar issued a Rescheduled Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on May 24, 2021, at 10:00 a.m.

On September 13, 2021, the Registrar issued a Rescheduled Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on October 01, 2021, at 10:00 a.m.

On October 01, 2021, Investigator Dimond inspected the work that had been done on the project to date, and took 6 photographs of the project. When he was finished, Investigator Dimond drafted Jobsite Inspection Notes. Ultimately, Investigator Dimond substantiated 9 complaint items; specifically, numbers 5-6, 8, 10-13, and 16-17, which he required Respondent to complete and/or remediate by appropriate means.

On October 25, 2021, Investigator Dimond issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated most of Complainant’s workmanship allegations. Respondent was put on notice that he had until 5:00 p.m. on November 12, 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 October 25, 2021, Investigator Dimond issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1158(A) for Respondent’s failure to include all nine (9) required minimum elements in his contracts, including his contract with Complainant.

On October 25, 2021, Investigator Dimond issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1154(A)(16) for knowingly working outside the scope of its license.

On November 22, 2021, Investigator Dimond forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On November 26, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), 32-1154(A(12); specifically, 32-1158, 32-1154(A)(16), and 32-1154(A)(22). Respondent was given until December 11, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1155.

On December 09, 2021, the Registrar received Respondent’s Answer. In pertinent parts, Respondent admitted that he “submitted the permit for revision” to the City of Prescott on December 08, 2021. Attached, Respondent provided an email from the Office of Code Compliance that indicated a decision would be made by December 10, 2021, and a separate email that advised Complainant withdrew the application on December 09, 2021.

On December 13, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on February 02, 2022. Per the December 20, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(2)(b)

Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Charge 3: A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158

Charge 4: A.R.S. § 32-1154(A)(16)

Charge 5: A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158

Hearing Evidence

Complainant testified on her own behalf and called Investigator Dimond as a witness. Respondent called Ariel Buelna as a witness. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 712 W. Delano Ave. Prescott, AZ 86301.

Respondent had originally hired Skyline Construction as a subcontractor on the underlying project.

The May 10, 2021, jobsite inspection was rescheduled because Respondent did not receive Investigator Dimond’s Jobsite Inspection Notification Letter.

Between October 25, 2021, and November 12, 2021, no attempts to perform corrective work and/or complete the project were made by Respondent because a building permit had not been issued by the local governing authority for a portion of the work, and because Respondent did not possess an appropriate license to address other portions of the project that required correction.

By November 12, 2021, all items identified for correction and/or completion by the Registrar’s Directive remained outstanding. The parties did not execute a Settlement Agreement by this date.

On February 01, 2022, Investigator Dimond checked the City of Prescott Code Compliance Office’s website and confirmed that Complainant had withdrawn the 5th building permit application revision request, as originally submitted by Respondent.

In closing, Mr. Buelna offered on behalf of Respondent offered that he would still like to complete Complainant’s project and avoid discipline by the Registrar.

In closing, Complainant argued that contracted with Respondent in good faith and had little to show for her efforts, save Respondent’s work on her roof which she took no issue(s) with. Per Complainant, her main umbrage is with Respondent’s workmanship on her porch. To that end, Complainant prayed for relief to make her whole at to that specific portion of her underlying contract with Respondent.

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)(2)(b) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Departure or disregard of a building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

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)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” Specifically, Ariz. Rev. Stat. § 32-1158 which provides that “Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1. The name of the contractor and the contractor's business address and license number.

2. The name and mailing address of the owner and the jobsite address or legal description.

3. The date the parties entered into the contract.

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection.

Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”

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 are clear.

In the case at bar, Complainant has sustained her burden of proof.

It is clear from the relevant and credible evidence of record that the parties had two (2) separate agreements: one for a roof installation, and another for the installation of a porch cover and tree trimming. Only the latter contract is at issue, as Complainant conceded that she took no issue(s) with Respondent’s work on her roof, and the Registrar did not issue the underlying Citation regarding Respondent’s workmanship on that portion of the project. To that end, the record reflects that a Directive was issued as a result of Respondent’s poor workmanship, as were two (2) Warning Letters, and Respondent failed to comply by the compliance deadline date.

Therefore, the only remaining issue to address is whether Respondent raised an affirmative defenses for his actions on the project, or lack thereof after the Directive was issued. Here, Respondent admitted violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(b) and 32-1154(A)(16). Additionally, Respondent’s contract with Complainant is not in compliance with Ariz. Rev. Stat. § 32-1154(A)(12); § 32-1158 on its face. Lastly, while Respondent clearly made several attempts to secure an approved revised permit, he failed to obtain a permit from the local building authority prior to starting the project. Moreover, he was not properly licensed to undertake such a project, or subcontract out such work. Respondent’s violation of Ariz. Rev. Stat. § 32-1154(A)(22) is neither justified or excused.

Because Complainant successfully established violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), 32-1154(A(12); specifically, 32-1158, 32-1154(A)(16), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established cause for the Registrar to take disciplinary action against 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 High Quality Roofing LLC, ROC License No. 324364, be suspended for five (5) days based on its statutory violations.

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, April 05, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary