ALJDEC decisions subject to certification as final

2021A-05200-CHC-ROC · Registrar of Contractors · 2022-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Allen Construction, LLC,

COMPLAINANT,

Priority Roofing Company

DBA: Priority Roofing,

License No. ROC 324307,

RESPONDENT.

No. 2021A-05200-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 25, 2022

APPEARANCES: Steve Allen appeared on behalf of Complainant Allen Construction, LLC. Richard Urcino appeared on behalf of Respondent Priority Roofing Company DBA: Priority Roofing.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Priority Roofing Company (Priority) holds license number

324307 issued by the Registrar of Contractors (ROC).

In April of 2021, Priority and Complainant Allen Construction, LLC (Allen

Construction) entered into a contract for the amount of $1,050, wherein Priority would install a torch down roof system on a house located at 29710 N. 109th Place, Scottsdale, Arizona, 85262. Mike Perry is the owner of the house.

Priority performed work under the contract in April of 2021.

On or about October 14, 2021, Allen Construction filed a complaint with

the ROC alleging poor workmanship on the part of Priority.

On November 22, 2021, ROC Investigator David Fagerburg conducted a

job-site inspection.

On November 23, 2021, the ROC issued a Directive to Priority that

provided, in relevant part, as follows:

Dear Respondent:

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 Monday December 13, 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:

Compliant Item 1: Priority roofing completed a torch down roof system over a new framed cricket @ the home addition, the area was 4’x9’ section to tie into existing torch down roof. The roof area completed is leaking where it was tied in. The leak has caused damage to the drywall and all ceiling will need to be painted also 13 floor tiles need to be replaced due to water getting under the tiled area causing the thinset to fail making the area of tiles under the leak to become hollow under the tile and causing them to be hollow and need to be replaced. The leak also caused damage to the dining table that will also need to be replaced.

Investigator’s Observation: The respondent is to correct the torch down roof system over a new framed cricket that leaks and the damages caused to the dining room ceiling drywall by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards

The Directive was mailed to Priority’s address of record.

Priority failed to comply with the Directive.

On January 21, 2022, the ROC issued a Citation against Priority.

Through the Citation, the ROC alleged that Priority may have violated Arizona Revised Statutes (A.R.S.) sections 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).

Priority filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

A hearing was held on February 25, 2022.

At hearing, Allen Construction presented the testimony of Steve Allen and

Mr. Perry. Richard Urcino testified on behalf of Priority. Investigator Fagerburg testified regarding the investigation of the compliant and the issuance of the Directive.

Mr. Allen explained that Priority performed poor work in connection with

the roofing project. Mr. Allen stated that Priority did not contact Allen Construction to correct the items listed in the Directive during the timeframe for compliance.

Mr. Perry explained that after Priority repaired the roof, Mr. Perry’s son

noticed that the ceiling was leaking in the area above the dining room table.

Mr. Urcino is an employee of Priority and performed the roof work.

Mr. Urcino explained that he recommended to Mr. Perry that he replace his entire roof. Mr. Urcino explained that he received the complaint. However, Mr. Urcino did not receive the Directive. Mr. Urcino stated that he did not update his e-mail address with the ROC.

Administrative notice is taken of Respondent’s prior License record on

March 17, 2022. Such prior License record reflects that Respondent’s License No. 324307 was first issued on April 23, 2019, and is active. Such prior License record also reflects that there were no other open complaints against Respondent’s license. Such prior License record further shows that one complaint was resolved or settled by the contractor or withdrawn by the complainant after the issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’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.

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

4. 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).

5. The preponderance of the evidence shows that Respondent failed to perform the roofing project in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

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 Ariz. Rev. Stat. section 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 License No. ROC 324307 held by Priority Roofing Company

DBA: Priority Roofing, for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, March 17, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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