ALJDEC decisions subject to certification as final

2021A-04917-CHC-ROC · Registrar of Contractors · 2022-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Greg Mitchell,

COMPLAINANT

Tucson Rolling Shutters, Inc.

DBA: Tucson Rolling Shutters & Screens,

License No. ROC 102021,

RESPONDENT

No. 2021A-04917-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 24, 2022

APPEARANCES: Complainant Greg Mitchell appeared on his own behalf. Douglas Clark, Esq. represented Respondent Tucson Rolling Shutters, Inc., doing business as Tucson Rolling Shutters and Screens. Jeff Healam, Chris Trafton and Robert Mackley appeared as witnesses for Respondent Tucson Rolling Shutters, Inc., doing business as Tucson Rolling Shutters and Screens. Arizona Registrar of Contractors Investigator Steve Hammons appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Tucson Rolling Shutters, Inc., doing business as Tucson Rolling Shutters and Screens (“Respondent”), is the holder of License No. 102021 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about October 3, 2019, Greg Mitchell (“Complainant”) contracted with Respondent for the replacement of solar screens at Complainant’s home.

On or about September 30, 2021, the Arizona Registrar of Contractors (“Registrar”) received a Complaint against Respondent from Complainant alleging that Respondent caused structural damage to Complainant’s home during the performance of Respondent’s scope of work.

The Registrar assigned the Complaint to Investigator Steve Hammons. After a November 4, 2021 jobsite inspection, Investigator Hammons issued a November 9, 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 12/03/2021.

RESTRICTIONS

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

. . . .

You are directed to remedy the following violations by the appropriate means and complete all work per the contract:

This work was performed without permits being applied for or any inspections done by the local building official. Permits and engineering are required when modifying a Load Bearing Engineered System this was verified by the local building official. Modifying of a load bearing engineered system is out of scope work for the license held by Tucson Rolling Shutters and Screens.

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Complaint Item 1: “Contractor did major structural damage to the three posts/columns and their connecting hardware in the window wall of the great room when installing the replacement solar shades.”

Investigator’s Observation: Verified. The Complainant pointed out and showed me where the replacement solar shades were installed at the top openings of his window wall located in his great room. The Complainant pointed out and showed me the cutouts in the three columns/posts, as well as showing me where the cuts went through the metal Hurricane Straps and mounting hardware (Screws, Nails). I observed all three posts/columns to have material removed, the middle post/column had material removed on both the north side and the south side of it. I observed the north column/post to have been notched to the point where the Hurricane Strap was cut and the screws, nails were exposed into the void of the notch making them ineffective.

I observed the middle post/column to have been notched on both the north side as well as the south side of it. The north side of the post/column had extensive horizontal cuts at the end of the notched area. The south side of the middle column/post had been notched to the point where the Hurricane Strap was cut and the nails were exposed into the void of the notch making them ineffective.

I observed the south column/post to have been notched to the point where the Hurricane Strap was cut and the screws, nails were exposed into the void of the notch making them ineffective. The south column appeared as though a chisel was used to make this notch. All of the cuts/notches into the three columns were not cut clean, they were various sizes, widths and depths.

All errors and emphasis in original.

On November 10, 2021, Investigator Hammons issued Warning Letters to Respondent regarding Respondent’s failure to obtain the proper permits for the project and Respondent’s contracting beyond the scope of its license.

After the issuance of the Written Directive and the expiration of the time period in which to comply, Investigator Hammons 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)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

Investigator Hammons testified consistently with his findings contained in the Written Directive. Investigator Hammons testified that he contacted the Pima County building authority and was advised that Pima County requires engineering and a permit for the work performed by Respondent. Further, Investigator Hammons testified that Respondent’s license does not allow it to perform work that would modify any loadbearing structure. Investigator Hammons testified that because Respondent is not licensed to perform the work it performed at Complainant’s residence, Respondent cannot legally perform any corrective work and is precluded from subcontracting for the corrective work to be performed. Consequently, the only way for Respondent to have complied with the Written Directive would have been to enter into a financial settlement with Complainant.

At the outset of the hearing, counsel for Respondent stipulated to Respondent’s violations of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a). Respondent admitted that it should not have cut into the beams. Respondent asserted that it attempted to resolve the matter with Complainant, however Complainant would not accept Respondent’s offer of settlement.

Complainant testified that Respondent destroyed three structural posts in his home during Respondent’s installation of replacement solar screens. Complainant explained that the structural posts are load bearing and support the roof of his home. Complainant testified that Respondent offered to illegally and improperly perform repairs. Complainant asserted that an engineer is required to inspect and instruct as to how to safely perform repairs, however, Complainant further asserted that Respondent provided “fraudulent” data to the engineer, that Respondent has not had an engineer actually inspect its work despite numerous opportunities to do so, and therefore, the engineering report and suggested remedy were based on inaccurate information.

Complainant asserted that the costs associated with proper repairs will exceed $30,000.00. Complainant testified that the equipment as installed by Respondent cannot be serviced.

Complainant expressed his frustration over the events that have transpired between him and Respondent over the course of approximately two years, and Complainant further expressed his concern that Respondent may have done such damage to other homes unbeknownst to other homeowners, and will continue to do so. Complainant explained that he discovered the damage caused by Respondent because he is an engineer, constructed his home, and was performing the stucco repair himself after Respondent completed its work, and that is how he discovered the structural damage.

Complainant testified that he has been victimized by Respondent for 27 months and that the safety of his home has been compromised by Respondent. Complainant requested that Respondent’s license either be revoked or suspended for 27 months, representing the amount of time his family’s safety has been compromised. Complainant asserted his belief that Respondent poses a risk to the community.

Jeff Healam, Respondent’s qualifying party and an officer, testified that Respondent has installed tens of thousands of solar shades during the 37 years Respondent has been in business, and that Respondent has never been disciplined, nor have there been any lawsuits filed against it. Mr. Healam testified that Respondent has never denied the damage sustained by Complainant and caused by Respondent, and that Respondent has been willing to negotiate reasonably. Mr. Healam testified that Respondent obtained a quote for the repair work from a contractor, however, now realizes that Respondent cannot contract with another contractor to have the corrective work performed. Mr. Healam also testified that the initial bid obtained by Respondent has been updated to include the damage to all three posts as the original bid was for the repair of only one post.

Administrative notice is taken of Respondent’s prior License record on March 4, 2022. Such prior License record reflects that Respondent’s License No. 102021 was first issued on April 28, 1994, and is active. Such prior License record also reflects that there are two open complaints, including the instant Complaint, zero 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 Hammons found that Respondent performed its work at Complainant’s home without obtaining the necessary permits and inspections by the local building official, as permits and engineering are required when modifying a load bearing engineered system, and such was verified by the local building official. Moreover, Respondent admitted that it did not obtain the required permitting. Therefore, Complainant established that Respondent departed from a building code in a material respect, resulting in prejudice to Complainant, in violation of A.R.S. § 32-1154(A)(2)(b).

Investigator Hammons also found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Hammons determined the existence of workmanship deficiencies concerning the work that was performed by Respondent. Moreover, Respondent admitted its workmanship violations. 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 comply with the Written Directive. Respondent’s license does not allow Respondent to perform work that would modify any loadbearing structure. Investigator Hammons testified that because Respondent is not licensed to perform the work it performed at Complainant’s residence, Respondent cannot legally perform any corrective work and is precluded from subcontracting for the corrective work to be performed. Consequently, the only way for Respondent to comply with the Written Directive would have been to enter into a financial settlement with Complainant. Respondent’s attempts to settle the matter financially with Complainant were unsuccessful due to the fact that Respondent’s offered financial settlements were based upon insufficient or incorrect information, as Respondent failed to have an engineer conduct an inspection and evaluation of the issues, and the information provided to the engineer by Respondent, and upon which the engineer relied, was inaccurate. Therefore, Complainant justifiably rejected Respondent’s unreasonable settlement offers. Therefore, Respondent’s argument that it did not comply with the Written Directive because Complainant would not accept its settlement offers is not persuasive as the credible, substantial, and probative evidence of record established that those offers were not based upon reliable information. 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. 102021 for a period of ten (10) 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.

-54864001

001

-137160-45720000Done this day, March 9, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000