ALJDEC decisions subject to certification as final
2021A-02489-OMC-LS-ROC · Registrar of Contractors · 2021-09-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT
v.
Gunsite Roofing, LLC
License No. ROC 324998,
RESPONDENT
No. 2021A-02489-OMC-LS-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: September 17, 2021
APPEARANCES: Assistant Attorney General Sarah Asta represented the Arizona Registrar of Contractors. Investigator Miles Crosby and Assistant Chief Counsel Chance Peterson appeared as witnesses for the Arizona Registrar of Contractors. Michael Joseph Sheehan appeared on behalf of Gunsite Roofing, LLC. Lynton Robert Leslie observed the proceedings.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Gunsite Roofing, LLC (“Respondent”) is the holder of License No. 324998 issued by the Arizona Registrar of Contractors (“Registrar”). Michael Joseph Sheehan is Respondent’s qualifying party.
On or about December 28, 2020, Lynton Robert Leslie (“Homeowner”) contracted with Respondent for the installation of a roof on Homeowner’s residence. The contract price was $30,410.00. On December 28, 2020, Homeowner paid Respondent $15,205.00.
The contract specified that the “metal to be used is 24 gage standing seam roof panels using the clip system and tape seal on the underside,” the color of the roof was to be “musket,” the finishes were to be “PVDF Resin Based (AKA Kynar 500/Hylar 5000,” and “snow gard shall be installed at determined areas.”
The contract was signed by Peter Sheehan, “[Respondent’s] Representative.” Peter Sheehan is Michael Sheehan’s twin brother.
On or about June 3, 2021, the Registrar received a Complaint against Respondent from Homeowner alleging poor work and that the materials and installation were not pursuant to the terms of the contract.
Homeowner attached to the Complaint a Sales Order from Custom-Bilt Metals dated January 12, 2021. The Sales Order indicates that the materials were sold to Respondent for Homeowner’s residence and specifies the materials to be 24 gage musket colored with a delivery date of February 5, 2021. Homeowner also attached to the Complaint a copy of the delivery receipt for the materials with a due date for the materials of April 16, 2021, that indicated the roof metal was 26 gage and the color was “Bursel.”
The Registrar assigned the Complaint to Investigator Miles Crosby. On June 3, 2021, Investigator Crosby issued a letter to Respondent which included a copy of the Complaint and requested a response to the Complaint.
Michael Sheehan, on behalf of Respondent, submitted to the Registrar an undated response to the Complaint. Respondent blamed the materials supplier for delivering the wrong materials, asserted that Homeowner agreed to changes, and acknowledged that “as to gauge of metal panels, a mistake was made somewhere within the 6 months waiting for project.” Respondent did not provide to the Registrar any change orders establishing an agreement by Homeowner to any changes or modifications to the contract terms.
On June 9, 2021, Investigator Crosby issued a Jobsite Inspection Notice to Homeowner and Respondent informing them that a jobsite inspection was scheduled for June 17, 2021, and included documentation explaining the jobsite inspection and Written Directive processes.
On or about June 11, 2021, Michael Sheehan, on behalf of Respondent, submitted an additional response to the Complaint stating that a representative from the materials supplier contacted Homeowner and made disparaging remarks about Respondent, and Michael Sheehan indicated that it was his belief that these comments caused Homeowner to file the Complaint.
On June 17, 2021, Investigator Crosby arrived at the jobsite for the previously scheduled and noticed inspection. Investigator Crosby documented his interaction with Michael Sheehan at that time in his Jobsite Inspection Notes as follows:
On June 17, 2021 at approximately 1100 hours, I arrived to the jobsite for the scheduled JSI. Upon my arrival, I noticed that Gunsite Roofing was not on site and called them. I had previously called them several times to advise the R. that the JSI was still scheduled and I would be conducting in as scheduled. The R. had emailed stating he desired to do it at a future time and I emailed back stating it could not be moved an hour prior to the JSI, hence the calls to try and inform him the best I could.
The following is not verbatim but an overview of the conversation with Mr. Sheehan.
Upon my third call when at the JSI he answered and I inquired about the his presents at the JSI. He advised he was trying to make it but had not left his current jobsite an hour away. I advised him of the agreed upon time from 15 days prior. The R. constantly interrupted and I could rarely finish a sentence without an interruption. He blamed the material manufacture for the incorrect roof installation. However, the C. had obtained photos from the manufacture regarding the material sitting in the yard waiting for payment. The material was pre-manufactured specifically for this customer. The C advised me they had a poor relationship with the R and they required payment prior to shipping. I advised the R of this information. The R stated he would install whatever roof the C wanted as long as he paid for it. I advised that he had contracted to install a specific roof and to my knowledge had not done any change orders. I advised him that if there
were change orders he needed to provide me with them so I could review them. He stated that all of the changes were verbal with the C. The conversation escalated when he asked how he was supposed to know about all the things he needed to do as a contractor and I advised him that he took a test and passed it which stated he had competent knowledge of the rules and laws of being a contractor. He then turned the phrase saying I had stated he was not competent. I explained to him what I had said and that his attitude towards the matter could affect his licensed if he was found not in compliance. He was very upset and continued to speak over me and interrupt. Eventually he calmed and stated to just do the JSI without him and do what I needed to do.
All errors in original.
On June 17, 2021, prior to the jobsite inspection, Investigator Crosby emailed Homeowner and Respondent a copy of Respondent’s Request to Inspect/Cure, as well as confirmation that the jobsite inspection would proceed as scheduled for later that morning. Thereafter, Peter Sheehan emailed Investigator Crosby to inform him that he would be representing Respondent from that point forward and Investigator Crosby responded by advising him that in order to represent Respondent, he must be listed on the license. The emails that followed from Peter Sheehan to Investigator Crosby became increasingly hostile.
On June 18, 2021, Homeowner obtained an Injunction Against Harassment against Peter Sheehan which ordered no contact between Peter Sheehan and Homeowner with a protected location of Homeowner’s residence, which is the location of the jobsite. The Injunction Against Harassment is in effect for one year from the date it was served. Threatening and intimidating text messages from Peter Sheehan to Homeowner precipitated Homeowner’s obtaining of the Injunction Against Harassment.
Following the jobsite inspection, Investigator Crosby issued a Written Directive to Respondent that provided 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 July 23, 2021.
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Materials and installation provided by contractor are
not per proposal and signed agreement.
Investigator’s Observation: Material is not what the customer contracted to have installed with no change orders. Correct by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 2 - Roof metal installed is 26 gauge NOT 24 gauge per
contract.
Investigator’s Observation: Material is not what the customer contracted to have installed with no change orders. Correct by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 3 - Roof metal is not PVDF Resin based Kynar 500/Hylar 5000 per manufacturer Custom Built Metals.
Investigator’s Observation: Material is not what the customer contracted to have installed with no change orders. Correct by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 4 - Roof metal installed is not (Musket) color per contract.
Investigator’s Observation: Material is not what the customer contracted to have installed with no change orders. Correct by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 5 - Roof metal was not installed using clip system and
tape seal per contract.
Investigator’s Observation: Material is not what the customer contracted to have installed with no change orders. Correct by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 6 - Snow guards not installed per contract.
Investigator’s Observation: Material is not what the customer contracted to have installed with no change orders. Correct by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
All errors in original.
Following the issuance of the Written Directive, Investigator Crosby was notified by Homeowner of the issuance of the Injunction Against Harassment. Investigator Crosby explained that he was concerned because although the Injunction Against Harassment was issued against Peter Sheehan only, Peter Sheehan and Michael Sheehan look so similar that Homeowner might have been unable to distinguish between the two. Consequently, on July 6, 2021, Investigator Crosby issued a Directive Withdrawn Letter, advising that the Written Directive had been withdrawn and a Citation had been issued.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
Investigator Crosby testified consistently with his Jobsite Inspection Notes and his findings contained in the Written Directive. Investigator Crosby testified that Peter Sheehan was hostile and aggressive, and that he had been in charge of Homeowner’s project, overseeing the work, and that Homeowner communicated more with Peter Sheehan than Michael Sheehan.
Chance Peterson, Assistant Chief Counsel for the Registrar testified that the Arizona Corporation Commission records concerning Respondent show Peter Sheehan was a Manager of Respondent until his removal effective August 10, 2019. Mr. Peterson further testified that Better Business Bureau (“BBB”) records dated September 16, 2021, the day prior to the hearing, reflect Peter Sheehan as a Manager and Principal for Respondent, and moreover, that the BBB file was opened on September 3, 2019, a date after the Amendment to the Articles of Organization removing Peter Sheehan as Manager.
Mr. Peterson testified regarding Respondent’s Answer to the Citation which included assertions that plans had been followed, that the roof would last beyond the warranty, that Homeowner verbally agreed to modifications, and that the work was performed in a professional manner.
Michael Sheehan testified that he took over the project from Peter Sheehan in December 2020, that Respondent experienced issues with obtaining the materials, and that Respondent ordered 24 gage roofing materials. Michael Sheehan testified that the roofing supplier had advised him that it would take a longer period of time to obtain the 24 gage material and Michael Sheehan instructed the supplier to obtain the material anyway. Michael Sheehan testified that he met with Homeowner on a daily basis and that they discussed the color and the metal material. Michael Sheehan asserted that Homeowner agreed to the change in gage and color, that they shook hands, and that Homeowner stated, “Just don’t tell my wife.” Michael Sheehan testified that he believes a verbal agreement and handshake are binding and “just as good as a signed contract.” Michael Sheehan testified that any defects in the roof were repaired, however further acknowledged that some deficiencies noted in the roofing inspection obtained by Homeowner, were valid. Michael Sheehan blamed the material supplier for “creating this issue” with Homeowner “to hurt” Respondent.
Michael Sheehan testified that he was “discouraged” by the texts Peter Sheehan wrote to Homeowner, and that Respondent had a crew from Phoenix, as well as materials, ready to comply with the Written Directive, however, it was thereafter withdrawn.
Michael Sheehan complained that Respondent has lost $250.000.00 worth of business due to this filed Complaint and feels that is “punishment enough.” Michael Sheehan testified that Respondent terminated all employees who worked on this project, that Peter Sheehan is no longer involved with Respondent, and that BBB information has been changed.
Administrative notice is taken of Respondent’s prior License record on September 23, 2021. Such prior License record reflects that Respondent’s License No. 324998 was first issued on June 28, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled/withdrawn complaints, and no discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The Registrar, as Complainant in this matter, 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 Vazzano 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 credible, substantial, and probative evidence established that Respondent installed a 26 gage roof in a color other than musket, which is a departure, without consent, from the agreed upon specifications pursuant to contract, resulting in prejudice to Homeowner. Therefore, the Registrar established that Respondent violated A.R.S. § 32-1154(A)(2)(a).
The credible, substantial, and probative evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The credible, substantial, and probative evidence further established that Peter Sheehan continued to act in the capacity of Respondent’s representative notwithstanding his previous removal from the Articles of Incorporation for Respondent. Peter Sheehan, operating in the capacity of Respondent’s representative, acted in an unprofessional and threatening manner toward Homeowner, to the point that Homeowner feared for his safety and was compelled to obtain an Injunction Against Harassment against Peter Sheehan. Therefore, the Registrar established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 324998.
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, September 29, 2021.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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