ALJDEC decisions subject to certification as final

2022A-04494-CHC-ROC · Registrar of Contractors · 2022-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeremy Wayne Swingle,

COMPLAINANT,

Frontline Consultants & Contracting LLC

ROC License No. 331745,

RESPONDENT

No. 2022A-04494-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 07, 2022 at 1:00 PM.

APPEARANCES: Jeremy Swingle (“Complainant”) appeared on his own behalf. Nicholis Faussette, Esq. appeared on behalf of Frontline Consultants & Contracting LLC (“Respondent”) with Nicole Brewster and Cody Brewster as witness. Jack Grimm appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Betty Swingle 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 December 22, 2020, the Registrar issued License No. 331745 General Dual KB-2 Residential and Small Commercial contracting license to Respondent. The license is renewed through December 31, 2022. Daniel Eugene Vaughan is the Qualifying Party on this license, and Cody Lee Brewster is listed as the Owner. Respondent’s address of record for the license is 14639 W. Dynamite Blvd. Surprise, AZ 85387. Respondent has an active $14,000.00 surety bond on the license issued by Old Republic Surety Company, effective November 12, 2020. There is no prior discipline noted for the license, save one previously resolved or otherwise settled complaint and an open complaint which is presumably related to this matter.

On or about June 20, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 331745 alleging abandonment and poor workmanship regarding a water damage repair, which included the replacement of Complainant’s roof. The Registrar designated it Complaint No. 2022-04494 and assigned to Jack Grimm (“Investigator Grimm”) for investigation.

On June 24 2022, Investigator Grimm issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on July 19, 2022, at 10:00 a.m.

On July 19, 2022, Investigator Grimm conducted a review of the authorized scope-of-work from Complainant’s insurance company, payment, and correspondence executed between the parties, and inspected the work that had been performed on the project to date. He also took 10 photographs of the project site. When he was finished, Investigator Grimm drafted his Inspection Notes. Ultimately, Investigator Grimm determined that Complainant’s narrative constituted 5 complaint items, of which he substantiated 2. Specifically, Investigator Grimm determined that complaint items 1 and 3 constituted poor or incomplete work, and failed to meet the Registrar’s minimum workmanship standards.

On August 03, 2022, Investigator Grimm issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on August 22, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22), and 32-1154(E).

On August 25, 2022, Investigator Grimm forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On August 29, 2022, the Registrar issued a Citation to Respondent for 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 September 13, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On September 12, 2022, the Registrar received Respondent’s timely Answer. In pertinent parts, Respondent noted the following:

Complainant’s Mother, Betty Swingle, hired Respondent (Frontline) to assist with getting their roof repair approved by their insurance provider, and to subsequently repair the damaged roof. Originally, the neighbors’ roof, whose duplex shares a roof with the Swingle’s dwelling, was approved for roof damage by their own insurance. The roofing company (All About Roofing LLC) that performed work on the other roof, successfully repaired the damage and installed “Desert Tan” shingles. That left the Swingle’s roof mismatched, and still damaged. Frontline successfully managed to get the Swingle’s roof approved for repair, and entered into a contract with Betty Swingle on September 14, 2021. Jeremy Swingle, the son of Betty Swingle, stated to the representative of Frontline that he wanted his shingles to match the shingles of his roof mate. The color that matched the roof mate’s shingle color was, and still is, Desert Tan. The color selected on the contract was “Aged Cedar”.

After the supplier loaded the Desert Tan shingles onto the roof, Jeremy Swingle contacted Frontline insisting that the color he wanted, Aged Cedar, was not present on the roof. Although Desert Tan matched the roof of the other duplex, the color Jeremy Swingle wanted was Aged Cedar. Frontline then removed the loaded Desert Tan, and ordered Aged Cedar to be delivered. Aged Cedar was ultimately installed onto Complainant’s roof.

On August 18, 2022, Cody Brewster, the owner of Frontline Consultants & Contracting, went out to Betty Swingle’s residence to repair all items listed within the directive so that Frontline could be in compliance with the directive before August 22. Neither duplex property owner allowed Mr. Brewster to go onto their property so that Frontline could perform any the required work listed in the directive. Mr. Brewster emailed Jack Grim requesting direction on next steps due to the Complainant, Jeremy Swingle, forbidding Frontline from entering onto the property to perform the work. Jeremy Swingle was also CC’d on this email.

The purpose of the “Written Directive From The Registrar” is to allow the parties to comply so that the issue is resolved. If one party continues to act in bad faith, thus denying the other from completing their performance, the burden to comply shifts to the complaining party. Ultimately, Jeremy Swingle did not allow Frontline the ability to cure, or make right, any deficiencies in the workmanship that was previously performed. Thus no penalties should befall Respondent in this matter.

(All errors in original.)

On September 14, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on November 07, 2022. Per the October 03, 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 his own behalf and called Investigator Grimm as a witness. Respondent called Nicole Brewster and Cody Brewster as witnesses. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant’s mother, Betty Swingle, owns residential property located at 10026 N 97th Dr. Peoria, AZ 85345. Complainant resides at the property with Mrs. Swingle. The property is a duplex. Neither Complainant nor Mrs. Swingle own the adjoining residential property.

On an unknown date, the property at issue sustained significant water damage, as did the adjoining property.

Complainant’s neighbor (“Neighbor“) had their roof repaired first.

On or about September 14, 2021, Complainant and Respondent entered into a $6,215.28 insurance remediation contract to repair water damage to Complainant’s roof. Complainant asked to match Neighbor’s roof shingle color with “Aged Cedar” tiles, and seem them in so that the roof appeared uniform and singular.

Complainant paid Respondent $1,459.89 towards the project.

Because roof tiles labeled “Desert Tan” were delivered to the project site, Complainant had them returned to sender. Complainant did not double-check the color of the tiles by visually inspecting them beforehand. Nor did Complainant consult with Respondent prior to returning the materials.

Although Respondent was of the opinion and belief that the Desert Tan tiles would color match Neighbor’s, Respondent agreed to have the Aged Cedar tiles delivered per Complainant’s request and the parties’ contract.

After the Aged Cedar tiles were placed on Complainant’s roof, Complainant was dissatisfied as he believed the Aged Cedar tiles did not match the color of Neighbor’s roof tiles.

The Directive’s compliance period was August 03-22, 2022.

Investigator Grimm testified that he believed corrective work for complaint items 1 and 3 could be performed in a day.

On August 17, 2022, Respondent left Mrs. Swingle a voicemail message to advise that Respondent could perform repairs on August 18, 2022. The message indicated that Mrs. Swingle needed to return the call to confirm. Neither Mrs. Swingle nor Complainant responded to the message.

On the morning of August 18, 2022, Respondent arrived at the project site with materials to complete repairs per the Directive. Because Respondent had not obtained prior authorization from Complainant or his mother to perform corrective work that day, Complainant forbade Respondent from accessing the project site. Immediately afterward, Respondent emailed Investigator Grimm the following:

We are currently on site attempting to complete repairs. We left a voicemail to confirm work with no response. We showed up today and the homeowners on both sides of this duplex will not allow us on property. Please advise us on the next steps as we have a written directive to complete repairs by 8/22.

Investigator Grimm did not reply to Respondent. Nor did the parties select a repair reschedule date.

Respondent left materials at the project site.

After the admittedly hostile interaction on August 18, 2022, the parties had no further communication with one another. Complaint items 1 and 3 remain outstanding.

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 case are clear.

It is clear that the parties had an insurance remediation contract that Complaint paid just under 25% towards. It is also clear that some of Respondent’s work on the project fell below the Registrar’s minimum workmanship standards, which were itemized as substantiated complaint items 1 and 3; though that was due, in large part, to Mr. Swingle’s insistence that Aged Cedar tiles be placed on his roof instead of Desert Tan tiles. It is also clear that the underlying corrections would have taken a day to complete, and that Respondent did not adhere to the Registrar’s Directive by August 22, 2022.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for failing to timely complete remediates for the project per the specifications outlined in the Registrar’s Addendum Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that Respondent raised the valid affirmative defense of denial of access. The record reflects that Respondent attempted to perform corrective work on August 18, 2022, in accordance with the Registrar’s Directive, but was not permitted to access the project site due to Mr. Swingle’s refusal to grant entry. While it is true that Complainant was not legally required to permit Respondent to enter the project site, by refusing to grant Respondent access Complainant effectively waived a right to his workmanship claim against Respondent because he deprived the licensee an opportunity to correct deficiencies in the work at issue. The Registrar neither demands nor expects perfection from a licensee on the licensee’s first attempt at work. A licensee must be given a reasonable opportunity to remediate workmanship issues prior to the issuance of discipline against their license. Here, Respondent has presented sufficient proof to establish a lack of opportunity.

Although Complainant established a minor violation of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a) regarding complaint item 1 only, there is insufficient evidence in the record to hold Respondent in violation of § 32-1154(A)(22) by a preponderance of the evidence for either complaint item. Thus, no grounds exist for the Registrar to take disciplinary action against Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Complainant’s appeal be dismissed.

IT IS FURTHER RECOMMENDED that Complaint 2022-04494 be 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, November 14, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

c/o Legal Department

Registrar of Contractors

Arizona Registrar of Contractors, Complainant

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Jeremy Wayne Swingle, Complainant

10026 N. 97th Dr.

Peoria, AZ 85345

[email redacted]

Nicholis Faussette, Esq.

Faussette & Faussette, PLLC, Counsel for Respondent

3800 N. Central Ave., Ste. 615

Phoenix, AZ 85012

[email redacted]

By-54864001

001

-137160-45720000 Miranda Alvarez

Legal Secretary