ALJDEC decisions subject to certification as final

2021A-03786-CHC-ROC · Registrar of Contractors · 2022-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Millicent Jaime,

COMPLAINANT

PDM and Co. Construction Incorporated

DBA: McFate Construction,

License No. ROC 274927,

RESPONDENT

No. 2021A-03786-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 18, 2022

APPEARANCES: Complainant Millicent Jaime appeared on her own behalf. Respondent PDM and Co. Construction Incorporated, doing business as McFate Construction, failed to appear. Arizona Registrar of Contractors Investigator Mike Springer appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

PDM and Co. Construction Incorporated, doing business as McFate Construction (“Respondent”), is the holder of License No. 274927 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about July 2, 2021, Millicent Jaime (“Complainant”) and Ashley Melendez contracted with Respondent for Respondent to remove and replace the roof on Complainant’s home. The contract price was $20,280.00 and Complainant paid Respondent $12,168.00.

On or about August 9, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment.

The Registrar assigned the Complaint to Investigator Mike Springer. After a September 10, 2021 Jobsite Inspection, Investigator Springer 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 September 29th, 2021.

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

Compliance Item: 1 - Underlayment improperly installed: Noticed water dripping from the center of my porch, also down exterior walls after the underlayment was installed on July 7th. I contacted the owner in an attempt to get him out and look at the underlayment. I was told it was installed properly and after time the underlayment would stretch out and properly fit better. After a two day storm I recorded how bad it was raining inside my attic. It was then the owner said something is wrong with the underlayment. He still did not want to acknowledge the underlayment was installed improperly. After reviewing the manufacturers installation instructions, the underlayment was installed with staples instead of plastic capped nails. By improperly installing the underlayment the limited lifetime warranty is void. Also since the underlayment was improperly installed my house suffered severe water damage. Emergency services was contact by my insurance company after I called to complain about excessive water pouring into the attic.

Investigator’s Observation: Most of the homes ceiling drywall was damaged and removed. The only two rooms undamaged were a closet and

laundry room where the ceiling remains in place. The insulation was damaged and removed. During the JSI, the Respondent admitted that the damage was caused by the improperly installed underlayment.

Compliance Item: 2 - Roof not complete: Currently waiting on a proper underlayment install and repair of both front and back porch to include rafters that have split due to water damage. Also waiting on replacement of drip edges that the company removed.

Investigator’s Observation: At time of JSI, the roof underlayment was still in place with tarps covering the underlayment. There is damage to the T- 111 ceiling in places where it has buckled and detached from the rafters. Some of the rafters have split from water damage. The Respondent admitted that the damaged rafters and T-111 were not damaged prior to the leaks.

Compliance Item: 3 - Missing shingles: Still waiting on shingles which I was told were purchased but have yet to see proof of purchase or provided contact information after I've asked repeatedly. $12k should have gone towards the purchase of some materials. I was told the shingles were paid for and will be shipped almost every Tuesday since the job started.

Investigator’s Observation: Respondent stated he had trouble finding enough matching shingles to do the job. He stated he ran out of money due to divorce issues and did not have funds to complete the work.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 4 - Zero funds, Insurance claim: The business owner came to the house on July 30, 2021 and told us he did not have funds to repair all of the damages he caused. He also said he put in a claim with his insurance company. I have asked multiple times for proof and have not been provided with anything.

Investigator’s Observation: Addressed in item 3.

Compliance Item: 5 - Timeliness: The overall job was only supposed to take 6 days. Over a month later with 38 tarps still on the roof, a roof still leaking, ceilings and insulation being torn down within the whole household due to the extensive damages, nothing has changed with the roof.

Investigator’s Observation: Addressed in previous items

Compliance Item: 6 - Water damage: The inside of my house has water damage and it continues to get damaged since the roof is still not properly sealed and installed per any manufactures or IBC 2013 guidelines. The ceilings and insulation will be removed (already in the process).

Investigator’s Observation: Addressed in item 1.

All errors in original.

After the expiration of the deadline date in the Written Directive and no contact from Respondent, Investigator Springer contacted Complainant and was informed that no corrective work had been performed and the condition of the work remained the same.

Thereafter, Investigator Springer 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), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On December 17, 2021, the Registrar issued a Notice of Hearing advising the parties that the hearing would convene on January 18, 2022, at 9:00 a.m. via Google Meet, and that an Order providing a Google Meet link for the hearing would issue separately from the Office of Administrative Hearings. On December 17, 2021, an Order containing the Google Meet link and instructions for how to join the hearing by video or by telephone, was issued to the parties at their respective email addresses of record.

On the date and time set for hearing, Complainant and Investigator Springer appeared for hearing via Google Meet. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Springer testified consistently with his findings contained in the Written Directive. Investigator Springer explained that the underlayment was improperly installed by Respondent resulting in the need to remove 98% of the interior drywall as well as all of the ceiling due to water damage from the leaking roof.

Investigator Springer also testified that he issued a Warning Letter to Respondent dated August 11, 2021, because Respondent’s contract documents failed to contain the advisement regarding a property owner’s right to file a written complaint with the Registrar.

Complainant testified that Respondent improperly installed the underlayment and was supposed to use nails, however, utilized staples instead.

Administrative notice is taken of Respondent’s prior License record on January 24, 2022. Such prior License record reflects that Respondent’s License No. 274927 was first issued on September 26, 2011, and was first revoked on August 23, 2021. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and two complaints resulting in 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.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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’s written contract for the project failed to contain the advisement that a property owner has the right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued. 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 revoke Respondent’s License No. 274927.

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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contract documents to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contract documents into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 24, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000