ALJDEC decisions subject to certification as final

2021A-04075-CHC-ROC · Registrar of Contractors · 2022-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nicholas Rone,

COMPLAINANT,

v.

Gregory David DiMatteo

dba D & L Commercial Roofing

Southwest,

License No. ROC 300036,

RESPONDENT.

No. 2021A-04075-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

VIRTUAL HEARING: January 31, 2022

APPEARANCES: Nicolas Rone appeared. Gregory David DiMatteo, Respondent’s Owner and Qualifying Party, appeared. Investigator Sheldon White appeared.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

Respondent is the holder of License No. 300036, CR-42 Roofing, issued by the Arizona Registrar of Contractors (Registrar) in 2015.

On or about August 20, 2021, the Registrar received Complainant’s Licensed Complaint Form (Complaint) containing a list of complaints regarding incomplete work as contracted for in November 2020, primarily the water system and reroofing. Complainant indicated that the work had started on November 20, 2020 and had stopped on November 22, 2020.

Complainant contracted with Respondent for roof replacement, gutter replacement, and cleaning out of the water tank for the total cost of $7,900.00. Complainant gave Respondent $4,000.00 as a deposit.

Following the September 7, 2021 jobsite inspection, Registrar’s Investigator Sheldon White issued a Written Directive (Directive) dated September 8, 2021 verifying incomplete work on two of the four complaint items: Item #2 - the water tank system, cleaning and operable; and Item #3 - the reroofing. The Registrar set forth September 27, 2021 as the deadline for Respondent’s compliance with the Directive.

At the jobsite inspection, Respondent had noted several reasons for the incomplete work to that date, including inclement weather, fire-related road closures, equipment breakdown, and his own health.

In the course of the investigation, Investigator White found that Respondent’s Bid Proposal had not contained all of the minimum required elements of a contract called for in statute. Investigator White issued a Warning Letter on September 8, 2021 regarding the statutory requirements, reserving the right to pursue disciplinary action.

At the time of the compliance inspection, Investigator White found that the two Directive items had not been completed; as a result, he forwarded the Complaint for legal citation against Respondent.

The Registrar issued a Citation on October 13, 2021, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(1); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; Ariz. Rev. Stat. § 32-1154(A)(12) as to Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter.

Ariz. Rev. Stat. § 32-1158 provides that contracts between the parties that are over $1,000.00 must contain, in writing, nine specific elements, including an estimated date of completion. Importantly, the statue provides that the contract set forth the following information in Bold 10-point type: the property owner’s rights to file a complaint with the Registrar for alleged violation of Ariz. Rev. Stat. § 32-1154 within the time frame set forth in Ariz. Rev. Stat. § 32-1155(A) and the Registrar’s telephone number and website.

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

On October 25, 2021, Respondent’s Answer to the Citation was received by the Registrar. The Registrar subsequently noticed the matter for hearing.

At hearing, Complainant argued that the failure of Respondent to have completed the work for such a lengthy period of time had prevented he and his family from use of the home (due to the lack of water) and that his $4,000.00 deposit should be refunded due to the failure of Respondent to have performed on the contract. Complainant acknowledged that, after the Directive deadline of September 27, 2021 had passed, he had denied initially access, but he explained that his insurance company had informed him the roofing work was required to be done and, therefore, he had allowed access to the site after the Directive deadline. Complainant further explained his continued follow-up efforts to have Respondent complete the work, continuing to be in communication with Respondent’s Steve Harris.

The hearing record demonstrated in this matter that, as of the Directive deadline date of September 27, 2021, the roofing work had not been started despite some materials having been dropped off at the site and that the water tank work had not been completed.

At hearing, Respondent argued that this project was to be done last of his multiple projects in that area and that Respondent simply had not anticipated the various delays due to equipment breakdown, the remote location, fire and snow road closures, lack of adequate supplies available in the remote area, and illness of both he and Steve Harris. Respondent’s position was that water tank was usable when they finished the work they had done cleaning it out, but he acknowledged that it needed a final rinse for the work to be completed. Respondent argued that he had not abandoned the work but that, in his 40 years of working, had never encountered such a combination of circumstances.

The hearing record evidenced that the parties had discussed a refund of the $4,000.00 deposit monies once the roofing materials had been retrieved by Respondent; however, at the time of the hearing, neither action had taken place.

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this matter is the only open case as to Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section 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).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Regarding workmanship, Investigator White found two workmanship issues existed at the time of the September 7, 2021 job site inspection. Following the issuance of the Directive mandating correction of those items by September 27, 2021, Investigator White again found that those same two workmanship issues remained uncorrected at the time of the compliance inspection. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed along with the written contract requirement violations.

10. The Administrative Law Judge concludes that Respondent is in violation of the following statutes and rule:

a. Ariz. Rev. Stat. § 32-1154(A)(1) for abandonment of the work;

b. Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108, for failure to perform all work in a professional and workmanlike manner;

c. Ariz. Rev. Stat. § 32-1154(A)(12), specifically Ariz. Rev. Stat. § 32-1158, regarding the minimum requisite elements of a written contract; and

d. Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 300036 as follows:

(a) a one week suspension on the effective date of the Registrar’s Order in this matter, and

(b) a requirement that Respondent submit to the Registrar a form contract that complies with both Ariz. Rev. Stat. § 32-1158 no later than the effective date of the Registrar’s Order in this matter. In the event that Respondent fails to submit a compliant form contract, Respondent’s license shall be further suspended on the effective date of the Registrar’s Order until the Registrar receives and approves a compliant form contract.

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 40 days from the date of that certification.

Recommended this date, February 22, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors