ALJDEC decisions subject to certification as final

2022A-02493-CHC-ROC · Registrar of Contractors · 2022-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Codi McCalla,

Complainant,

vs.

Arizona Pristine Roofing LLC,

ROC License No. 332702,

Respondent.

No. 2022A-02493-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 10, 2022 at 1:00 PM.

APPEARANCES: Codi McCalla (“Complainant”) appeared on her own behalf. Jazlyn Muzio appeared on behalf of Arizona Pristina Roofing LLC (“Respondent”). Chris Fultz appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Sati McCalla and Chris Muzio observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On March 22, 2021, the Registrar issued License No. 332702 Specialty Dual CR-42 Roofing contracting to Respondent. The license is active, in good standing, and renewed through March 31, 2023. Jazlyn Nicole Muzio is the Qualifying Party and Member on the license. Christopher A. Muzio is also listed as a Member for the license. Respondent’s address of record for the license is 20976 E. Raven Dr. Queen Creek, AZ 85142. Respondent has an active $6,750.00 surety bond on the license issued by RLI Insurance Company effective February 24, 2021. There is no prior discipline noted for the license, save one open complaint which is presumed to be Complainant’s.

On March 29, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 332702 alleging poor workmanship of their project. Attached to the complaint was a copy of Respondent’s quote for the project, and an invoice showing Complainant’s payment and outstanding balance on the project. The Registrar designated it Complaint No. 2022-02493 and assigned to Chris Fultz (“Investigator Fultz”) for investigation.

On April 06, 2022, Investigator Fultz issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on April 20, 2022, at 10:00 a.m.

On April 20, 2022, Investigator Fultz conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. He also took 6 photographs of the project site. When he was finished, Investigator Fultz drafted his Jobsite Inspection Notes. Ultimately, Investigator Fultz determined that there were a total of fourteen (14) individual complaint items contained within Complainant’s original complaint. Of those, Investigator Fultz substantiated seven (7) total complaint items. Specifically, Investigator Fultz verified complaint items 3-4, 7-8, 10 and 13-14. Investigator Fultz concluded that the work Respondent had performed failed to meet the Registrar’s minimum workmanship standards.

On an unknown date Complainant provided additional information to Investigator Fultz. As a result, complaint item 1 that was modified from unsubstantiated to substantiated.

On April 28, 2022, Investigator Fultz issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated a majority of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on June 01, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A), 32-1154(A)(22), and 32-1154(E).

On June 07, 2022, Investigator Fultz forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On June 10, 2022, the Registrar issued a Citation to Respondent for an alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until June 25, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On June 12, 2022, the Registrar received Respondent’s Answer, whereby Respondent generally denied violating the enumerated charges listed in the Citation. Additionally, Respondent noted that it offered to address Complainant’s concerns if she signed an addendum agreement, and alleged that it had a legal justification for failing to timely address the Registrar’s Directive. Specifically, Respondent alleged that the Registrar’s instruction to “notify the registrar’s assigned investigator of your compliance with this directive by 5:00pm [sic] on 05/23/2022” was “overly broad, vague, and ambiguous as it requires speculation and assumptions.” Respondent admitted that “[o]ur office assumed that the above referenced statement in the directive meant we had to report the resolution to the investigator by 5:00pm [sic] on 05/23/2022, not that all repairs needed to be completed by 5:00pm on 05/23/2022.”

On A June 13, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on August 10, 2022. Per the June 27, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf, called Investigator Fultz as a witness, and submitted exhibits 2-4, and 7 into the record. Respondent called Jazlyn Muzio as a witness and submitted exhibits 3, 10, 12, 14-16, and 18 into the record. The Notice of Hearing and the Registrar’s agency file were admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns residential property located at 28000 N. 59th Pl. Scottsdale, AZ 85266.

On March 02, 2022, the parties entered into a $15,200.00 residential roofing construction contract for the aforementioned property. Complainant paid Respondent $7,600.00 towards the contract prior to filing her complaint with the Registrar.

Work on the project commenced March 17, 2022, and stopped March 21, 2022.

On March 24, 2022, Respondent sent Complainant an addendum agreement to address the underlying complaint items, obtain payment for the outstanding balance on the contract, and close out the parties’ agreement.

Between April 28, 2022, and June 01, 2022, no corrective work was attempted by Respondent.

On April 29, 2022, and May 09, 2022, Respondent emailed Complainant to schedule repair date(s).

On May 10, 2022, Respondent offered to perform repairs on June 09, 2022, whereby Complainant confirmed that the project site would be available, with “a day or two days advance notice.”

On May 13, 2022, Respondent emailed Complainant to confirm the proposed June 09, 2022, repair date, to which Complainant confirmed the appointment.

On May 17, 2022, Respondent emailed Complainant to inquire why Complainant had not signed the payment agreement it proposed, and asked if Complainant would pay the contract balance upon completion of Respondent’s corrective work.

On June 06, 2022, Respondent advised Complainant that the repair date needed to be moved to June 15, 2022. On June 07, 2022, Complainant inquired whether Respondent’s proposed corrective work was predicated on her signing Respondent’s payment agreement, to wit, Respondent advised that it was desired but not required. Complainant retorted, “[Y]ou have a lien on our house that includes fees and late charges for work you have yet to complete and have not finished in a reasonable amount of time. I don’t see how we can continue to move on in good faith with that in place. It has always been our intent to pay you when the work is completed. Per your contract, we notified you in writing that we were not accepting your work and you did nothing but argue with us.”

On June 10, 2022, Respondent wrote the Registrar to advise that it misunderstood the Directive, and had never received the second Directive issued in the matter.

Closing Arguments

In closing, Respondent argued that because it “acted in good faith,” it should not be subjected to discipline by the Registrar. Per Respondent, the Registrar’s Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a) charge was an “unjust attack” on its character and professionalism, and the Registrar’s Ariz. Rev. Stat. § 32-1154(A)(22) charge was “unfair.”

In closing, Complainant argued that the underlying issues with Respondent’s workmanship were substantive, not cosmetic, and that she had “legitimate concerns” with the roof and worries regarding future complications.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

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

Ariz. Admin. Code R4-9-108(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in this matter are clear.

It is clear from the record that on March 02, 2022, the parties entered into a $15,200.00 residential roofing contract and that Complainant paid Respondent half of the contract price.

It is also clear from the record that although the Registrar issued a Directive in this matter as a result of Respondent’s poor workmanship on the underlying project, Respondent did not receive the Registrar’s second/amended Directive; effectively depriving Respondent of repair time between May 24, 2022, and June 01, 2022.

Moreover, it is further clear from the record that on May 10, 2022, Respondent offered to perform repairs on June 09, 2022, and Complainant agreed. This agreement effectively further extended the Registrar’s Directive past June 01, 2022, to June 09, 2022. It was not until June 06, 2022, when Respondent advised Complainant that the repair date needed to be moved to June 15, 2022, due to an exigent circumstance, that Complainant rescinded her prior agreeance.

No corrective work was performed by Respondent between June 06, 2022, and June 15, 2022, because it was not permitted by Complainant.

Because Respondent was not afforded a reasonable opportunity to remediate the deficient workmanship on the parties’ project, the Registrar cannot discipline Respondent’s license as a result of Complaint No. 2022-02493.

As Complainant has not established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has failed to establish cause for the Registrar to discipline Respondent’s contractor’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the matter be remanded back to the referring agency.

IT IS FURTHER RECOMMENDED that an Amended Directive for Complaint No. 2022-02493 be issued, to provide Respondent with no less than fourteen (14) days to perform corrective work and/or complete complaint items 1, 3-4, 7-8, 10 and 13-14 as substantiated by Investigator Fultz.

ALTERNATIVELY it is the recommendation of this tribunal that five days after the effective date of the Final Order in this matter Complaint No. 2022-02493be closed.

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.

Done this day, August 26, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary