ALJDEC decisions subject to certification as final

2021A-04401-CHC-ROC · Registrar of Contractors · 2022-04-18

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Paul Barrett,

COMPLAINANT,

Experienced Roofing LLC

License No. ROC 269649,

RESPONDENT.

No. 2021A-04401-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2022

APPEARANCES: Complainant David Paul Barrett appeared on behalf of himself. Jason Lady appeared on behalf of Experienced Roofing, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On February 16, 2022, the Registrar of Contractors (ROC),

issued a Notice of Hearing setting the above-captioned matter for hearing on March 29, 2022, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

Experienced Roofing, LLC (Experienced Roofing) holds license number

269649 issued by the ROC.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Experienced Roofing may have violated Arizona Revised Statutes (A.R.S.) § 32- 1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) R4-9-108(b); A.R.S. § 32-1154(A)(22).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the ROC may suspend or revoke Experienced Roofing’s license.

5. On or about May 4, 2020, Complainant David Paul Barrett and Experienced Roofing entered into a residential repair contract.

6. On or about June 17, 2020, Experienced Roofing started and completed the work on Mr. Barrett’s home.

7. On or about May 19, 2021, Mr. Barrett filed a complaint with the ROC alleging poor workmanship on the part of Experienced Roofing.

8. On or about November 22, 2021, ROC Investigator Christopher Fulk conducted a job-site inspection. Investigator Fulk noticed several leaks directly under the area where Experienced Roofing had performed construction work.

9. On November 30, 2021, Investigator Fulk issued a Directive to Experienced Roofing. The November 30, 2021 Directive provided, in relevant part, 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 December 20th, 2021.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1 , or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Six new leaks on ceiling in front bedroom now. Continues to leak after multiple rains.

Investigator’s Observation: The front bedroom shows signs of active leaking. There is now damage to the drywall and possible insulation. The Drywall and insulation will need to be fixed as well. This will need to be fixed.

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 - One new leak on ceiling in adjacent room (den) now. Continues to leak after multiple rains.

Investigator’s Observation: Active leaks in the den as well as damage to drywall and insulation. This will need to be fixed.

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 - One new leak in hallway closet ceiling (adjacent to front bedroom) now. Continues to leak after multiple rains.

Investigator’s Observation: The leak in the hallway closet appears to be in the same location of the entryway leak. There is damage to the drywall and possible the insulation as well. This will need to be fixed.

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 - One new leak in front entryway ceiling (adjacent to closet above) now. Continues to leak after multiple rains.

Investigator’s Observation: As described in item number 3. This will need to be fixed as well.

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.

10. Experienced Roofing did not correct the items listed in the Directive.

11. On January 18, 2022, the ROC issued a Citation against Experienced Roofing’s license for alleged violations of Arizona Revised Statutes (A.R.S.) 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).

12. Experienced Roofing filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. At hearing, Mr. Barrett presented the testimony of his wife, Heidi Barrett. Mr. Lady testified on behalf of Experienced Roofing. Investigator Fultz testified regarding his job site inspections and issuance of the Directive.

15. Mrs. Barrett stated that she agreed with the finding of Investigator Fultz.

Ms. Barrett noticed leaks after she experienced a large volume of rain.

16. Mr. Lady did not agree with Investigator Fultz’s conclusion that the leak was caused by Mr. Lady’s work because it occurred in the area where Mr. Lady performed work. Mr. Lady also contended that the Barrett’s did not begin to experience leaks until there was an unusual rain.

17. Administrative notice is taken of the ROC’s public website. According to the information available on the website on April 18, 2022, Experienced Roofing’s license was first issued on January 24, 2011, and is active. Such prior License record also shows that there is only one open complaint against Experienced Roofing. Experienced Roofing’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.

CONCLUSIONS OF LAW

This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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).

4. The Administrative Law Judge may consider the ROC’s administrative record. See A.A.C. § R4-9-118.

5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).

6. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the ROC’s Directive without valid justification, which is a 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 ROC shall suspend Experienced Roofing, LLC’s license number 269649 for one day. It is further recommended that the ROC require Respondent to pay the sum of $250.00 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 ROC’s final order, the ROC 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 is forty days after the date of that certification.

Done this day, April 18, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary