ALJDEC decisions subject to certification as final

2021A-03547-CHC-ROC · Registrar of Contractors · 2022-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Else Clark,

COMPLAINANT

VR Maintenance and Repair LLC

License No. ROC 327318,

RESPONDENT

No. 2021A-03547-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 14, 2022

APPEARANCES: Complainant Else Clark appeared via Google Meet. Victoria Fiems appeared via Google Meet on behalf of Respondent VR Maintenance and Repair, LLC. Registrar of Contractors Investigation David Thomas appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

VR Maintenance and Repair, LLC. (Respondent) is the holder of License No. 327318 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 31, 2021 Else Clark (Complainant) agreed to have Respondent “[r]eplace main rooftop and the shade cover patio sheeted and proofed with rolled roof.” The contract amount was for $5,471.88. On April 24, 2021, the parties also agreed to add new material for sealing the back patio and roof in the amount of $349.60.

On or about July 23, 2021, the Registrar received a Complaint containing five items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Thomas. The jobsite inspection was performed on September 1, 2021.

Investigator Thomas issued a written directive on or about October 18, 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 .November 5th 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - I found this contractor through neighbor. He was to redo partial flat roof and removed a slatted patio cover and made it full cover over the patio. The flat roof and patio were a torch down roof application. It appears as if the suspended license holder then applied an elastomeric cover over the top of the torch down product-this is not acceptable as now the product cannot breath and bubbles will occur.

Investigator’s Observation: This complaint item is verified. A paint on / roll on substance was applied to the rolled roofing. Respondent applied these materials. Paint on substance is peeling and bubbling. The rolled roofing Course 5 is applied over the bottom of course 6 that would allow water to go under course 5 and all other courses below. No slope on the flat roof and is now leaking at seem. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Roof needs to match the current color of my existing roof.

Investigator’s Observation: this complaint item is verified. Existing roof is brown, newly applied roofing is white. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Prior to the patio slats being removed, I had not a problem with rain because the patio was open. Now that the roof has been covered rain ponds on top of the patio roof which is not acceptable.

Investigator’s Observation: This complaint item is verified. Slats from covered patio were removed. OSB sheeting was applied with no slope for water run off. Rolled roofing was applied. Water now ponds on flat roof and is now leaking at rolled roofing joint. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - There were metal flashings that he installed with nails that are protruding through the other side of the fascia.

Investigator’s Observation: This complaint item is verified. Nails to secure the drip edge are 8D nails. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - I was not giving a contract per AZ state Statues. This contractor also has an R62 suspended license and he can only charge up to $5,000 and I was charged $5821.88 and paying $350 in cash and the balance in checks. I am a senior citizen and I feel I have been taken advantage of.

Investigator’s Observation: This complaint item is verified. Homeowner was not given a written contract.

Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.

(All errors contained in the original)

On December 21, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158;

On or about January 5, 2022, Respondent e-mailed an Answer to the Registrar.

On or about February 11, 2022, a Notice of Hearing was issued setting a hearing on March 14, 2022 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Thomas testified that he believed that the 15 day time period was enough time for Respondent to repair the corrective work. Investigator Thomas testified further that he contacted Complainant on December 16, 2021, to determine if any corrective work had been performed. When Complainant responded in the negative, Investigator Thomas decided to not conduct a compliance jobsite inspection. Rather, Investigator Thomas decided to refer the case to the Registrar’s legal department for a citation.

Investigator Thomas stated that he found poor work and that there was no proper permit in place to and that one was required because of the OSB sheeting which was being used.

In addition, Investigator Thomas testified that there was no contract for the project, only two invoices.

Complainant testified on her own behalf, and testified that she hired Respondent to perform roof repairs after seeing Respondent at her neighbor’s property. She testified that after the first rain, the roof was leaking and that when she informed Respondent, they came back out to perform the repairs, but charged her and additional $350.00.

Complainant testified also that Respondent never contacted her to make the required repairs once the Written Directive was issued.

Respondent offered the testimony of Mario Rios, who worked on the roof. Mr. Rios stated that the patio has a “negative pitch” which was not up to code. Further he noted that the whole top of the roof was rotted, because rain was coming between the patio and the house. Mr. Rios testified that he did not obtain a permit because Complainant did not want anyone on her property and it was such a small area of the roof which was being repaired. Finally, Mr. Rios testified that nothing in the contract stated changing the structure, however, later Complainant wanted him to change the pitch. Further, because of where Complainant was located it was a four hour round trip.

Ms. Fiems testified that after the first rain, they came out and put flashing to divert the rain as well as adding roof coating for $350.00. Ms. Fiems also testified that the parties’ only contract were the two invoices, but she could not e-mail them to Complainant so they were hand-delivered.

Administrative notice is taken of Respondent’s prior License record on March 25, 2022. Such prior License record reflects that Respondent’s License No. 327318 was first issued on January 7, 2020 and was inactive as of February 22, 2022. The record also reflects that there was one open complaint, namely the present complaint.

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

The preponderance of credible evidence established that a permit was required for the work and Respondent failed to obtain the same at the outset. If, in fact, Complainant did not want anyone on her property, that does not excuse the necessity of a permit. Respondent could have and should have refused to do the work if Complainant would not cooperate. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Respondent applied an elastomeric cover over the top of the torch down product, thereby not allowing the product to breathe. In addition, the roof color did not match the existing roof, the OSB sheeting was applied with no slope for water to run off, and nails were protruding through the metal flashings. 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 preponderance of the evidence established, that there was no written contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158. The invoices simply were not sufficient.

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. 327318 for a period of ten days.

It is further recommended that Respondent shall supply a contract to the Registrar that complies with A.R.S. § 32-1158. If Respondent fails to do so on or before thirty days following the effective date of the Registrar’s final order, the Registrar shall revoke Respondent’s license, effective on such deadline date.

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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Done this day, March 25, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

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-137160-45720000