ALJDEC decisions subject to certification as final

2021A-05073-CHC-ROC · Registrar of Contractors · 2022-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Terry P O'Hearn,

COMPLAINANT

M I Son's Roofing LLC,

License No. ROC 290653,

RESPONDENT

No. 2021A-05073-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 4, 2022

APPEARANCES: Terry P. O’Hearn and Mike O’Hearn for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On February 2, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 9:00 a.m. on March 4, 2022 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent M I Son’s Roofing LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

No one appeared for Respondent and the matter was convened in its absence at about 9:18 a.m.

Complainants Terry P. O’Hearn and Mike O’Hearn appeared and testified on their own behalf.

ROC investigator Steve Hammons also testified.

Through a contract entered into on September 14, 2021, Complainants hired Respondent to make repairs at a house they were planning on moving into. These repairs included replacing some sections of the roof, recoating other sections, and eliminating ponding.

Respondent’s qualifying party and member Daniel Mitchel met with Complainants and inspected the roof on August 28, 2021. At that time, Respondent informed the Complainants that it carried workman’s compensation insurance, but Complainants later learned that that was not true.

Respondent estimated that it would take one week to complete the project.

Respondent did not adequately staff the project, at times using non-employees who did not have the requisite skills, and choosing to staff a large commercial project instead of Complainants’ project.

On September 24, 2021, after Respondent had removed sections of the roof, including one that was not supposed to be removed, rain caused water damage in the house. Respondent failed to properly cover the roof and water damage to the house occurred on at least four other dates.

On or about October 8, 2021, Complainants filed their complaint against Respondent in which they alleged poor work.

On December 1, 2021, ROC’s Mr. Hammons conducted a jobsite inspection. On December 6, 2021, ROC issued to Respondent a Directive that provides in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 23, 2021.

***

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Faulty work allowed water to flood our home. Contractor removed two sections of our roof. The plastic he installed didn't prevent water from entering. Contractor refused to make a claim for the damage. I had to start a claim with his insurance.

Contractor approved partial water restoration only upon threats of legal action.”

Investigator’s Observation: This allegation is verified. The Complainant pointed out and showed me areas on top of the roof that had been re-roofed. The Complainant showed me areas of the rolled roofing that was not secured. The Complainant picked up edges of the rolled roofing in several areas, including the parapets that was not secured. The Complainant showed me slack in the rolled roofing along the wall of the parapet, areas of obvious ponding, and areas of excessive coating to attempt to raise the roofing area to avoid ponding.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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: “Our roof leaked three times while the problem was not been corrected.”

Investigator’s Observation: This allegation is verified. The Complainant pointed out and showed me the interior of the residence to have extensive water damage in several rooms. The Respondent advised he covered the roof however, the covering failed. The Respondent advised he will have the damage corrected and that he is in litigation with his insurance company.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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: “Our house needs interior repairs in seven rooms.”

Investigator’s Observation: This allegation is verified. The Complainant pointed out and showed me the interior of the residence to have extensive water damage in several rooms. The Respondent advised he covered the roof however, the covering failed. Respondent advised he will have the damage corrected and that he is in litigation with his insurance company.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Contractor keeps pulling his crews. They return at 2:30 or 3:00 and work a couple of hours.”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Governing Rule: N/A

Complaint Item 5: “Contractor has not provided a copy of our signed contract. We signed it when he received his down payment check. Contractor is off the job until he can provide Cert of Insurance for Worker's Comp. He continues to promise it. We cannot accept the liability.”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Governing Rule: N/A

Respondent made attempts to repair the items ROC ordered it to repair and on December 28, 2021, Mr. Hammons conducted a compliance jobsite investigation.

Mr. Hammons determined that Respondent had not complied with ROC’s Directive. Regarding Complaint Item 1, Mr. Hammons compliance jobsite investigation notes show that:

Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been done, however; the current [conditions] do not meet ROC Workmanship Standards. The Complainant pointed out several areas that the Respondent worked on. The Complainant pointed out where the Respondent poured Hot Tar on the roof to address the previous ponding issues; this has caused ponding in the immediate areas and damage to the existing skylights. The Complainant also showed the rolled roofing that was still not adhered to the sides of the parapets, and the Complainant could still pick up areas of the rolled roofing. The Complainant also showed me the area of the roof that the Respondent advised he would re coat with the correct material during the initial Job Site Inspection; this area has not been re coated. The current conditions do not meet ROC Workmanship Standards.

Regarding Complaint Item 3, Mr. Hammons concluded that Respondent had attempted to make repairs, but the work did not meet ROC’s workmanship standards.

Regarding Complaint Item 4, Mr. Hammons concluded that Respondent had not attempted to make the required repairs. Making the interior repairs are not within the scope of Respondent’s license.

ROC issued to Respondent a Citation dated December 30, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Mr. Hammons provided credible testimony consistent with his observations as set out in ROC’s Directive.

Mr. Hammons provided credible testimony that Respondent’s original work and its work attempts to make repairs were indicative of extremely poor workmanship.

Mr. Hammons provided credible testimony that during the jobsite inspection Mr. Mitchell agreed to repair the water damage inside Complainants’ home.

Complainants presented credible evidence showing that in some areas of the roof, the ponding was worse after Respondent completed its work than it was before the work started and that Respondent did not apply elastomeric sealant in some areas for which the contract called for sealant.

ROC’s website shows that Respondent has been licensed since 2014 and that it has not been the subject of any other complaints.

CONCLUSIONS OF LAW

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 § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

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).

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.").

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

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).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

3. Violation of any rule adopted by the registrar.

*****

22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action....

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Ariz. Rev. Stat. section 32-1154(E) provides that “The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of [Ariz. Rev. Stat. 32-1154] subsection A, paragraph 22.”

The preponderance of the evidence shows that Respondent’s work did not meet the workmanship standards, which is a violation of Ariz. Admin. Code section R4-9-108(A) and also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive, which is a violation of subsection 32-1154(A)(22).

Because Respondent has violated the applicable statutes, ROC has authority to discipline its license.

Respondent’s violations are egregious in that its work was extremely poor and in that it caused Complainants to suffer water damage to their house over the course of several months. The fact that Respondent failed to appear at the hearing is a factor in aggravation.

Considering the facts of this matter, including Respondent’s failure to appear and that ROC’s website shows that there have been no other complaints against its license, a ten day suspension and a $500 civil penalty are appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar suspend Respondent M I Son’s Roofing LLC ’s license number 290653 for ten days and impose against Respondent a civil penalty of $500.

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.

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-137160-45720000Done this day, March 17, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000