ALJDEC decisions subject to certification as final

2021A-03009-CHC-ROC · Registrar of Contractors · 2022-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Francisco Diaz,

COMPLAINANT

Better Way Roofing LLC

License No. ROC 262790,

RESPONDENT

No. 2021A-03009-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 13, 2022

APPEARANCES: Complainant Francisco Diaz appeared via telephone on his own behalf. Investigator Steve Hammons appeared via Google Meet for the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Better Way Roofing LLC (Respondent) is the holder of License No. 262790 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 22, 2020, Francisco Diaz (Complainant) contracted with Respondent to repair roofs, due to storm damage on a front and back house on Complainant’s property. The total cost was to be $13,936.00. Because the back house had solar panels, Complainant agreed to pay $5,306.12 to Respondent so that he could hire a sub-contractor to remove and re-install the same.

On or about June 30, 2021, the Registrar received a Complaint containing two items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Steve Hammons. The jobsite inspection was performed on August 25, 2021 after a previous inspection had been rescheduled.

Investigator Hammons then issued a written directive on or about August 25, 2021, 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 September 10, 2021.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means and complete work per the contract.

Complaint Item 3: “I would like to amend my original complaint to include the reinstallation of my solar panels which the contractor had removed in order to perform their work. As of yet, Better Way roofing has not contacted myself nor the solar company he contracted to remove the solar panels to have them reinstalled. Better way Roofing was paid in advance for the solar panel removal and reinstallation costs.”

Investigator’s Observation: This allegation is verified. The complainant pointed out and showed me the solar panels are not attached to the top nor are the solar panels wired to the electrical connection, of the roof they are still on the ground.

Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...

(All errors contained in the original)

On September 27, 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); and A.R.S. § 32-1154(A)(22).

On or about October 12, 2021, Respondent submitted an Answer to the Registrar, stating that it was having financial problems and was requesting additional time to pay the balance to the solar company.

On or about December 10, 2021, a Notice of Hearing was issued setting a hearing on January 13, 2022 at the Office of Administrative Hearings, an independent state agency.

On or about December 17, 2021, the Office of Administrative Hearings issued an Order converting the hearing to a virtual hearing.

At hearing, Investigator Hammons testified as to the Registrar’s involvement and the above timeline.

Investigator Hammons testified that Respondent appeared at the Jobsite Inspection, and while the parties agreed that Respondent performed corrective work on the roofs, the solar panels had not been re-installed on the roofs.

Investigator Hammons testified further that no representative from Respondent appeared at the compliance jobsite inspection and that the solar panels remained on the ground.

In addition, Investigator Hammons testified Respondent was not licensed to install solar panels thus a sub-contractor was needed. Investigator Hammons testified further that it was his understanding that Respondent had not paid the sub-contractor the full balance, thus the sub-contractor never re-installed the panels.

Francisco Diaz testified on his own behalf and offered 11 exhibits into evidence.

Mr. Diaz testified that in August 2020, a severe wind storm caused damage to both houses on his property. The back house, which is Mr. Diaz’s primary residence had the solar panels installed.

Mr. Diaz testified that Respondent was referred to him, and once the parties agreed to a price, he coordinated with his insurance company and a check was issued.

Mr. Diaz testified further that Respondent informed him that he was not licensed to remove and re-install the solar panels. Respondent then contracted with a sub-contractor and Complainant agreed to pay Respondent $5,306.12. Mr. Diaz then arranged for his insurance company to issue a check, which was then later endorsed to Respondent.

Mr. Diaz testified that after some delays, Respondent completed the work on the roofs and removed the solar panels, however Respondent failed to re-install the same.

Mr. Diaz testified that he believed that the cost for the sub-contractor was approximately $4,300.00-$4,400.00.

Next, Mr. Diaz testified that he reached out to the solar company to try to determine the cause of the delay. He was informed that while Respondent paid the down payment, Respondent’s check bounced for the remaining balance, and thus the solar company refused to re-install the solar panels.

Finally, Mr. Diaz testified that to this day, the solar panels have not been re-installed.

The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Further, the Order converting the hearing to Google meet was mailed and e-mailed to Respondent’s address of record.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on January 20, 2022. Such prior License record reflects that Respondent’s License No. 262790 was first issued on February 21, 2010, and reflects that there were three open complaints, which included the present complaint. Further, as of January 18, 2022, Respondent’s license has been suspended.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant 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.” Hammons K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards, as the solar panels were not re-installed after the roof was repaired. 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 Respondent failed to complete the corrective work following the Directive being issued, as per Complainant’s testimony, the solar panels remain on the ground at the side of the house 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), and A.R.S. § 32-1154(A)(2)(a).

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. 262790 for a period of fifteen 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 30 days from the date of that certification.

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-137160-45720000Done this day, January 20, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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