ALJDEC decisions subject to certification as final

2022A-03659-CHC-ROC · Registrar of Contractors · 2022-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Katherine Marie Dolan ,

COMPLAINANT

Tarheel Roofing LLC

License No. ROC 329235,

RESPONDENT

No. 2022A-03659-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2022

APPEARANCES: Complainant Katherine Marie Dolan appeared on her own behalf. Respondent Tarheel Roofing LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Tarheel Roofing LLC (Respondent) is the holder of License No. 329235 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 16, 2021, Katherine Marie Dolan (Complainant) signed a contract with Respondent for, among other things, the installation of a new roof, fascia, and gutters. The contract did not include an estimated date of completion or an advisement that the homeowner had the right to file a complaint with the Registrar.

On or about May 3, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Chris Allen. After a jobsite inspection, Investigator Allen issued a 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 June 19, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Ice and water shield install instructions incomplete, thus installed in wrong layering direction.

Investigator’s Observation: At the time of the inspection the ice & water shield/underlayment was installed with the laps going uphill. It also appears that there is not underlayment on the upper roof.

Respondent shall correct in an appropriate manner.

. . . .

Compliance Item: 3 - No 1/8 inch gaps between plywood for expansion.

Investigator’s Observation: At the time of the inspection, I was not able to fully inspect the plywood due to the underlayment being installed. The areas I could see there was not a gap. A 1/8 inch gap is standard practice when installing roof sheathing/decking.

Respondent shall correct in an appropriate manner.

. . . .

Compliance Item: 4 - Nails shot too deep through plywood. Not holding (wood now bubbling underneath ice shield)

Investigator’s Observation: At the time of the inspection, there were several areas where the plywood has lifted or bubbled. Based off the nails left on the roof it appears that the Respondent was not using nails long enough to penetrate through deep enough to the structure below.

Respondent shall correct in an appropriate manner.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Allison was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely 32-1158; and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on April 4, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A March 23, 2022 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on April 4, 2021.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Allison testified as to his observations of the project during the jobsite inspection. Because Investigator Allison was notified no work had been performed after the written directive was issued, he did not perform a compliance inspection. Investigator Allison noted that Respondent’s license was suspended as of August 25, 2022, for lack of bond.

Complainant testified that Respondent did not contact her at any time between the issuance of the written directive and the deadline for compliance. Complainant stated that other contractors have told her the metal on the roof is not usable and must be removed.

Administrative notice is taken of Respondent’s prior License record on August 26, 2022. Such prior License record reflects that Respondent’s License No. 329235 was first issued on June 9, 2020, and was suspended on August 25, 2022 for lack of bond. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint against Respondent’s license.

CONCLUSIONS OF LAW

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

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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. 329235 for a period of five days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, September 15, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary