ALJDEC decisions subject to certification as final

2021A-03696-CHC-ROC · Registrar of Contractors · 2022-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Natalie Paige Beckley,

COMPLAINANT

America's Best Roofing Company, LLC

License No. ROC 322113,

RESPONDENT

No. 2021A-03696-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 18, 2022

APPEARANCES: Complainant Natalie Paige Beckley appeared on her own behalf. Sergio Jimenez, Jr. appeared on behalf of Respondent America’s Best Roofing Company, LLC. Elizabeth Gonzalez, Antonio Gonzalez, and Roger Curtis appeared as witnesses for Respondent. Arizona Registrar of Contractors Investigator Manny Bermudez appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

America’s Best Roofing Company, LLC (“Respondent”) is the holder of License No. 322113 issued by the Arizona Registrar of Contractors (“Registrar”). Elizabeth Gonzalez is Respondent’s qualifying party and a member. Sergio Jimenez, Jr. is a member of Respondent.

On or about September 2, 2020, Natalie Paige Beckley (“Complainant”) contracted with Respondent to perform roof work on Complainant’s home. Respondent’s scope of work included a tile portion of Complainant’s roof, as well as two areas of flat roof.

On or about August 3, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Manny Bermudez. After an August 20, 2021 jobsite inspection, Investigator Bermudez issued an August 25, 2021 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 September 10, 2021.

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

Complaint Item 1: “Water (rain) pouring in through my ceiling.”

Investigator’s Observation: Verified: At time of inspection, I saw multiple areas throughout the residence multiple areas where water had leaked in and caused damage to the drywall material. The respondent acknowledged the active leaks in the living room area and assumed responsibility to correct

those specific areas.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Water damage to dry wall in multiple areas and overall excessive moisture in the house.”

Investigator’s Observation: Unverified: Although at the time of inspection I observed multiple areas of drywall, damage a water test was done on multiple areas of the roof and I did not observe any active water leaking.

Complaint Item 3: “Discussions and agreements to repair tile, fill holes, and install flashing were made to me by several different people at America's Best over the course of 3 house visits since the rain came through the house.

None of these items have ever been fixed. I was first told the roof was not sealed, then told it was potentially from cracks in the stucco, then told it was from missing flashing to finally cracked tiles and holes between the flat roof and the parapet. The only repair work to be done was on the first visit; the roofer who told me the roof was not sealed put some black tar-like material in corners and top of the tiled roof which did not stop all water coming into the house.

On the last visit, 2 individuals from America's Best told me they would seal/fill a large hole between the flat roof and the parapet along with replacing broken tiles and redoing some of their tile work on the tile roof. I found out later from the dry wall repair man that they said "we had settled what was my responsibility and theirs" inferring any of the previously promised repairs would not be fixed. ”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Complaint Item 4: “Overall poor communication and unprofessionalism from America's Best. I have had to reach out to them several times to get appointments, get information, have conversations or confirmation of any of the repair work to be done as well as any general consensus on the cause of the water entering my house. Prior to the America's Best roof inspection and the following recommended/resulting roofing maintenance and repair, I never had this volume of water enter my house or this amount of moisture present in my house. ”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Complaint Item 5: “Below is a basic timeline in an attempt to provide more context:

7/12/2021 - Heavy rainstorm hit, water poured in from the ceiling in our living room on the side with no water issues previous to our complete roof install by you (see video)

7/13/2021 - Called twice and finally was provided with a time someone would be out to check on our roof

7/15/2021 - First roof tech came out: Told me the roof was not sealed and made some repairs. I called the office for the manager; she also shared in the same shock I had learning the roof was not sealed. I was then told about 30 minutes later Sergio would meet me at my house.

7/15/2021 - Sergio comes to my house: Does not directly agree that the roof has not been sealed. Tells me that water could be coming in through cracks in the stucco and that he will send out a stucco guy for inspection.

7/20/2021 - Text communication with Sergio regarding the flashing at the top of the tile roof that is the problem. States that will be fixed in the upcoming week also agree to fix the interior water damage to our drywall.

7/21/2021 - Roger Curtis (drywall guy) comes by to review the work needing to be done, we schedule for the next week

7/27/2021 - Roger begins work on drywall after I return from vacation; I return home to find of water throughout all areas of our roof from over the weekend.

7/27/2021 - I sent email and stopped all interior work

7/29/2021 - 2 more people come out to take a look at the roof. They take photos and tell me they will repair some of the tile work, seal a large hole where the flat roof meets the parapet up against the tile roof and reseal beneath the A/C unit.

8/3/2021 - I receive a call from Roger Curtis who is going to do the interior dry wall repair - he tells me that they told him "it has been settled what is my responsibility" and he can resume his repairs. I immediately call America's Best and have to leave a message. I receive no call back and send an email.”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

All errors in original.

On September 22, 2021, Investigator Bermudez conducted a compliance inspection. Investigator Bermudez’s Compliance Jobsite Inspection Notes state the following:

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

As stated on Directive: Complaint Item 1: “Water (rain) pouring in through my ceiling.”

Investigator’s Observation from initial inspection: Verified: At time of inspection, I saw multiple areas throughout the residence multiple areas where water had leaked in and caused damage to the drywall material. The respondent acknowledged the active leaks in the living room area and assumed responsibility to correct those specific areas.

Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been done, however; the current conidtions do not meet ROC Workmanship Standards.

All errors in original.

Thereafter, Investigator Bermudez forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

Investigator Bermudez testified that Respondent assumed responsibility for the leaks and to correct specific areas. However, Investigator Bermudez could not state whether the leaks had been remedied, and therefore, does not know whether Respondent complied with that portion of the Written Directive and whether leaks may continue to exist. Investigator Bermudez testified that a water test was not performed on the tile portion of the roof because Respondent assumed responsibility to correct that area. Furthermore, because a water test is considered a “destructive test,” Investigator Bermudez felt one was not necessary at the compliance inspection, and consequently, he does not know whether corrective work was completed by Respondent in regard to the leak. Investigator Bermudez testified that the Citation was based upon Respondent’s noncompliance with the interior corrective work as he does not know whether Respondent performed corrective work to remedy the leaks.

Complainant testified regarding the photographs she submitted that depict water damage that occurred after Respondent performed corrective work. Complainant further testified that Respondent had failed to install flashing, Respondent’s work was aesthetically “horrible”, and she confirmed that a water test had not been performed because Respondent assumed responsibility for the leaking. Complainant testified that the roof is still leaking, resulting in further interior water damage, and Respondent assumed responsibility to correct the deficiencies and failed to do so. Regarding the interior damage, Complainant testified that Respondent’s subcontractor contacted her on September 13, 2021, however, at that time, Complainant was quarantined due to COVID, and therefore, repairs could not be performed. Respondent’s subcontractor contacted Complainant beyond the deadline date contained in the Written Directive. Further, Complainant reasonably believed that if the leaking had not been repaired, additional interior damage would occur, and any interior repairs would be damaged once again. Therefore, Complainant justifiably sought assurance that all leaks were repaired prior to completing the interior work.

Sergio Jimenez, Respondent’s co-owner, testified that he went to Complainant’s home on July 15, 2021, to inspect the damage. Mr. Jimenez asserted that Respondent never admitted to fault or assumed responsibility for the issues. However, according to Investigator Bermudez’s Jobsite Inspection Notes, Mr. Jimenez was not present at the jobsite inspection, but rather, Respondent’s representative, Dominic Glaser, was present. Mr. Jimenez testified that upon his July 15, 2021 inspection of the roof, he “noticed a couple of things were off regarding the roof tiles.” Mr. Jimenez testified that he agreed to “plug in liquid flashing and swap out some tile” and did so and “took care of areas of concern.” However, this was done prior to the jobsite inspection performed by Investigator Bermudez, and prior to the issuance of the Written Directive. Therefore, Investigator Bermudez determined workmanship deficiencies remained and ordered that corrective work be performed, notwithstanding Respondent’s previous attempts at remedying the issues that continue to exist.

Mr. Jimenez testified that there was “confusion” regarding water testing and that there are no active leaks. Mr. Jimenez testified that Respondent could not comply with the Written Directive due to Complainant’s quarantine.

Antonio Gonzalez, Respondent’s field supervisor, testified that on September 20, 2021, he went to Complainant’s home to inspect Respondent’s work, take photographs, and perform any necessary additional work. Respondent had not informed Complainant that it would be performing any work, and when Complainant contacted Respondent’s office upon discovering Mr. Gonzalez on her property, no one was available to speak with her. Complainant was uncomfortable with Respondent appearing with no notice and not knowing what Respondent had intended to do while there. Moreover, the date Respondent went to Complainant’s home with no notice was beyond the deadline date in the Written Directive.

Elizabeth Gonzalez, Respondent’s co-owner, testified that Complainant’s submitted timeline of events is “pretty accurate.” Ms. Gonzalez referenced email correspondence between Complainant and Respondent that occurred prior to the jobsite inspection and issuance of the Written Directive, as well as email correspondence between Complainant and Respondent regarding the scheduling of the corrective work. The first correspondence from Respondent to Complainant was dated September 8, 2021, to schedule the corrective work on September 9, 2021, at 3:00 p.m., one day before the deadline date in the Written Directive. Complainant’s subsequent emails to Respondent indicate that her security cameras and roommate indicate that Respondent did not come to the property or perform work on the project on September 9, 2021. When Complainant asked for the photographs that Respondent alleged were taken during the course of corrective work, it took Respondent until September 20, 2021, to provide those photographs which are not dated, and therefore, there is no indication as to when the photographs were taken.

Ms. Gonzalez contended that the second leak was attributable to a stucco issue and the chimney area. Regarding the interior work, Ms. Gonzalez testified that Complainant “did not allow” the interior work to be completed. However, the attempts to repair the interior that were made after the issuance of the Written Directive, were made after the deadline in the Written Directive had expired.

Administrative notice is taken of Respondent’s prior License record on January 25, 2022. Such prior License record reflects that Respondent’s License No. 322113 was first issued on September 20, 2018, and is active. Such prior License record also reflects that there are three open complaints, two resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, Investigator Bermudez found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Bermudez determined the existence of workmanship issues concerning the work that was performed by Respondent, and Respondent acknowledged and assumed responsibility to correct those deficiencies. 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 that Respondent did not complete the required corrective work following the Written Directive being issued within the timeframe set forth in the Written Directive. The Administrative Law Judge concludes based on the evidence of record that valid justification did not exist for Respondent’s failure to comply with the Written Directive. 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).

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. 322113 for a period of four (4) 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 (30) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, January 27, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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