ALJDEC decisions subject to certification as final
2021A-04040-CHC-ROC · Registrar of Contractors · 2022-01-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bettina Damon,
COMPLAINANT
v.
Derol Foster Briscoe
DBA: Doctor Construction ,
License No. ROC 250959,
RESPONDENT
No. 2021A-04040-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 4, 2022
APPEARANCES: Complainant Bettina Damon appeared on her own behalf via Google Meet. Respondent Derol Foster Briscoe appeared on his own behalf via Google Meet. Investigator Gregory Johndrow appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Derol Foster Briscoe (Respondent) is the holder of License No. 267098 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 19, 2020, (Complainant) signed a contract with Doctor Construction, LLC for a roof replacement on her residence. The contract amount was for $14,669.00.
On or about August 16, 2021, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on September 9, 2021.
Investigator Johndrow then issued a written directive on or about September 21, 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 October 12, 2021.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 2: “Two different colored shingle were used on the Ramada.”
Investigator’s Observation: Verified: The Complainant pointed out and showed me the two different colored shingles. The Respondent confirmed two different colored shingles were used. The Respondent is to ensure all of the Shingles are the same color.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: “My old rotted wood was used in some areas.”
Investigator’s Observation: Verified: The complainant pointed out and showed me the visible areas under the patio where the old wood was used. The Respondent confirmed used plywood was installed in these areas as well as other locations on the residence. The Respondent shall make corrections by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 4: “There are many soft spots on both levels of the roof that cannot be stepped on. The roof sinks in and wood cracks.”
Investigator’s Observation: Verified: The Complainant pointed out and showed me the described conditions throughout the roof. The Respondent confirmed the condition is not acceptable and should have been addressed and corrected. The Respondent shall make corrections by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 5: “The porch was left with staple holes throughout.”
Investigator’s Observation: Verified: The Complainant pointed out and showed me the locations where the nail where ground off on the underside of the patio cover causing damage to the plywood. The Respondent shall make corrections by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “Water has leaked in several areas into the house.”
Investigator’s Observation: Verified: The Complainant pointed out and showed me locations of water damage inside the residence where staining is now present. The Respondent stated he was aware the roof was leaking as the complainant had called and sent pictures, however the Respondent failed to perform any corrective work presuming the work was corrected by others. The Respondent shall make corrections by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
(All errors contained in the original)
Also on September 21, 2021, Warning Letters were sent by Investigator Johndrow informing Respondent there may be violations for contracting without a license and failure to meet the elements of a contract.
On October 26, 2021, 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)(9)(c); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).
On or about November 5, 2021, Respondent e-mailed an Answer to the Registrar.
On or about December 3, 2021, a Notice of Hearing was issued setting a hearing on January 4, 2022, at the Office of Administrative Hearings, an independent state agency.
At the hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline.
Investigator Johndrow testified that Respondent had allowed Doctor Construction LLC to use its license for a fee, and that Mr. Briscoe was fully aware that Raul Leyva was using Respondent’s license. In addition, Investigator Johndrow testified that Mr. Leyva was an unlicensed contractor and also used unlicensed contractors on Ms. Damon’s job. Further, Mr. Leyva informed Investigator Johndrow that he was an employee of Respondent.
Investigator Johndrow testified that the minimum elements of a contract were not met as Complainant never had a contract Respondent, but even if Doctor Construction’s contract was used, it still did not meet the statutory requirements.
As to the workmanship, Investigator Johndrow testified that there were two different colored shingles on the roof; used plywood was installed; there were soft spots on the roof; there were nail and staple holes visible; and water was leaking inside the residence.
In addition, Investigator Johndrow testified that while he initially provided 21 days for the corrective work to be performed, he did not schedule the compliance jobsite inspection until October 18, 2021, thus allowing Respondent to have a total of 27 days to perform the corrective work.
Investigator Johndrow testified that while there was some corrective work performed, none of the Complaint items were fully and satisfactorily repaired. He testified further that he completed a pre-hearing inspection on December 21, 2021, and no additional corrective work has been performed.
Complainant testified on her own behalf and testified that she hired Mr. Leyva after he was referred to her. She testified that Mr. Leyva provided her a business card with the Arizona license number so she assumed he was a properly licensed contractor. She also stated that Mr. Leyva told her that he had permission to use the license.
Ms. Damon testified that the work performed took a long time to complete and that Mr. Leyva would routinely claim that the work she wanted corrected was cosmetic. Ms. Damon also testified that Mr. Leyva refused to come to her house when she called him in a panic because of the leak in the living room.
Ms. Damon testified that the roof over her porch now looks like, “fried bacon”.
Ms. Damon testified that while she feels badly for both Mr. Leyva and Mr. Briscoe, she is the one stuck with a bad roof.
Finally, Ms. Damon stated that Mr. Briscoe did nothing to help her remedy the situation.
Derol Briscoe testified on behalf of Respondent and submitted two exhibits into evidence. He testified that he knew Mr. Leyva was unlicensed and that for a monthly fee, he allowed Mr. Leyva to use his license. Mr. Briscoe testified that Mr. Leyva does not work for him.
Mr. Briscoe also testified that he had no knowledge of the contract with Ms. Damon.
Finally, Mr. Briscoe testified that now he understands that it was improper to allow Mr. Leyva to use his license and no longer will allow Mr. Leyva to use the same.
Administrative notice is taken of Respondent’s prior License record on January 18, 2022. Such prior License record reflects that Respondent’s License No. 250959 was first issued on November 29, 2008, and 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, and Mr. Briscoe admitted that he allowed Mr. Leyva to use his license by an unlicensed person in violation of A.R.S. § 32-1154(A)(9)(c).
The preponderance of the evidence established, that there was no written contract for this project between Mr. Briscoe and Ms. Damon in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158. Further, the contract that was provided by Doctor Construction was also in violation of the same statute.
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There were two different colored shingles on the roof; used plywood was installed; there were soft spots on the roof; there were nail and staple holes visible; and water was leaking inside the residence. Further, Mr. Briscoe did not dispute the same. 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 both Mr. Leyva and Mr. Briscoe failed to complete the corrective work following the 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).
Mr. Leyva and Mr. Briscoe’s arrangement is simply unacceptable. For at least 7 years, Mr. Briscoe has aided Mr. Leyva in unlicensed contracting. While this may be the first and only complaint, it is unfortunate that Ms. Damon had her roof botched so badly. Further, for Mr. Briscoe to not accept any responsibility is downright shameful and unacceptable.
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. 250959.
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 18, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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