ALJDEC - Licensing

2022A-04675-CHC-ROC · Registrar of Contractors · 2023-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Geneva Perkins ,

COMPLAINANT,

v.

The Unlimited Group Inc

DBA:Arizona Discount Home Repair

License No. ROC 311128,

RESPONDENT.

No. 2022A-04675-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 14, 2022 and February 24, 2023.

APPEARANCES: Attorney Thomas M. Shaw represented Geneva Perkins. Attorney Mark G. Saric represented The Unlimited Group Inc. dba Arizona Discount Home Repair.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

FINDINGS OF FACT

The Unlimited Group Inc. dba Arizona Discount Home Repair (Respondent) is the holder of Specialty Residential R-62 MINOR HOME IMPROVEMENTS License No. 311128 issued by the Arizona Registrar of Contractors (Registrar) in 2017.

On or about June 16, 2022, Geneva Perkins (Complainant) filed a Licensed Complaint Form (Complaint) with the Registrar against Respondent alleging abandonment and poor work with respect to a project.

In the Complaint, Complainant stated that, on November 4, 2021, she obtained a verbal contract with Respondent to replace the roof at her residence at 1749 E. Desert Drive in the amount of $14,000.00. Complainant wrote that the work began on February 20, 2020 and ended on April 14, 2020. Complainant wrote that they agreed to a $15,000.00 total roof replacement with an initial down payment of $2,000.00, stating “[t]to start the roof replacement, I gave him a money order payment for $2000 in February 2022.”

In describing the actual work and results, Complainant wrote:

Mr. Linnel and his two employees attempted to replace my flat roof however, they became frustrated after three days and [stopped] working on my roof because they were not capable of getting the flat roof pitch correct.

Mr. Linnel and his two employees left my roof unsealed resulting in major water damage in my home and my roof.

Mr. Linnel installed three sump pumps on my roof to remove the rainwater from my roof – it did not work. The sump pumps created a fire hazard because Mr. Linnel used extended electrical cords to power the sump pumps. The extended cords were plugged into an external AC receptacle near the electrical panel.

The interior of my home is severely damaged. The ceilings in the bedrooms are partially exposed to the roof rafters because of water damage.

There is mold and exposed fiberglass insulation in the bedrooms because of water damage.

There are insects and rodents entering my home because of the [exposed] ceilings and walls due to the water damage.

After receiving a copy of the Complaint, Mr. Linnel wrote a lengthy email on June 20, 2022 to the Registrar’s Investigator, Jack Grimm, regarding the matter. Mr. Linnel denied making a verbal contract or installing a roof, instead indicating that he had lent her the money to fix the roof because:

[I]t was in very bad shape and had over 15 leaking areas already and about to cave in, especially in her bedroom, she had a 2x4 [propped] up in her bedroom to hold the ceiling up. [B]efore the roofers came (it was an unsafe house). ... [B]ut it was that bad. So I felt sorry for her and I lent her money approx. $14,000 so she can hire someone to fix her roof.

In his email to Investigator Grimm, regarding the condition of the roof, Mr. Linnel described the issues that the roofers came upon included: (a) a fake truss beam (installed 15 years before) supporting inward-bent middle beams; and (b) there was already water ponding under the existing roof and that the only way to remove the water was with the pumps.

Mr. Linnel noted several other things regarding the background: that he met Complainant in 2007 when he was a handyman and they had become friends; that Complainant had multiple other properties that were in dire repair; that, over a decade, he had helped her so that the number of tenants in her properties had gone from 3 tenants to 90% [occupancy]; that, because she kept “demanding” money from him and he was not going to help her anymore; and, that she had only repaid a portion of the money he lent to her.

Investigator Grimm conducted a jobsite inspection on July 7, 2022. Investigator Grimm inspected the multiple complaint items and, after the jobsite inspection, he issued a written directive dated July 11, 2022 to Respondent that provided the following statements:

After investigation, the Registrar determined that you failed to meet 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 July 28, 2022.

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 reasons, 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:

Complaint Item #1: Mr. Linnel did not provide a contact therefore, I had to agree on a verbal contract to replace the roof on my house ...

Inspector’s Observation: Gilbert Linnel was not on site but I did get a written response from him stating he did not work on this roof and had no agreement to perform work. All three persons ... on site state that Mr. Linnel and two workers were on site and performed the roofing work and drywall work inside. ...

Governing Rule: 32-1154(A) - Minimum Elements of a Contract. – a Written contract shall obtain at least 9 written elements.

Complaint Item #2: We agreed on a $15,000 total roof replacement with an initial down payment for $2000 in February 2022.

Inspector’s Observation: The complaint stated the verbal agreement was for $15,000 and a check was issued on 2-18-20 for $2,000 with note on check “Partial payment of roof repair: made out to Gilbert Linnel. The complainant provided another copy of a check on what appears to be dated 6-12-20 with note on check “for work done on roof” made out to Gilbert Linnel. It appear there was an agreement for some kind of roof repairs. Any agreed upon work for an amount larger than $5,000 is out of scope of the license that is held by The Unlimited Group Inc. with a DBA of Arizona Discount Home Repair.

Governing Rule: 32-1154(A) – Knowingly contracting beyond a licensee’s scope.

Complaint Item #4: Mr. Linnel and his two employees attempted to replace my flat roof however, they became frustrated after three days and [stopped] working on my roof because they were not capable of getting the flat roof pitch correct.

Inspector’s Observation: The new roofing membrane was installed on a roof pitch that does not appear to slope correctly and shows large location of pooling water. The homeowner states the agreement was to fix the roof slope issues as well. The low pitch portion of the roof do not slope for the water to run off. Based on the observance of the ceilings (many areas of water damaged ceiling drywall) inside of the home; the roof certainly is still leaking. The rolled roofing is not installed per industry standard as many locations have large locations of surface applied black tar that will fail and crack.

*Correct locations of pooling water and install roofing membrane per installation instructions and industry standards.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a profession and workmanlike manner.

Complaint Item #5: Mr. Linnel and his two employees left my roof unsealed resulting in major water damage in my home and my roof.

Inspector’s Observation: Observed several locations of repaired ceiling drywall in the home that the homeowner states was repaired by the respondent that is poorly done and looks terrible. Also observed several locations in the home where the ceiling drywall has come down due to water damage.

*Correct missing and damaged drywall and poorly installed drywall with poor finish and texture. Correct all locations damaged by water intrusion.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a profession and workmanlike manner.

Investigator noted several Items not needing correction, as either already covered by the Directive or the Registrar having no jurisdiction, were Complainant’s stated issues regarding the status of licensure, the use of sump pumps, mold, and insects and rodents.

In an e-mail dated July 23, 2022, Mr. Linnel provided a letter from Alan Dressler, which stated that he (i.e., Mr. Dressler) had been present when Complainant hired Glendal Williams to repair the roof and that Mr. Linnel was not present. Mr. Dressler’s letter stated that he (i.e., himself) had helped for several days to tear off the existing roof (5 layers and a dummy roof) and, therefore, the whole roof needed to be replaced. Further, Mr. Dressler’s letter stated, when they asked her about supplies for the fix, Complainant told them that Mr. Linnel was lending her the credit cards to get supplies.

In an e-mail to the Registrar dated August 2, 2022, Mr. Linnel responded to the Registrar’s query (about completion of the Directive work) that he had nothing to do with contracting on Complainant’s roof and that he was going to contact Glendal Williams (in Indiana) who had done the roofing work.

On August 9, 2022, the Registrar issued a Citation against Respondent, charging possible violations:

Charge 1: A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B);

Charge 2: A.R.S. § 32-1154(A)(16); and,

Charge 3: A.R.S. § 32-1154(A)(22).

In his e-mail to the Registrar dated August 20, 2022, Mr. Linnel attached several receipts, indicating he had “loaned” his credit limit for purchase of supplies, noting that the $2,000.00 Complainant had given him was not a down payment but was to repay the supplies for the roof work.

The matter was not resolved by the parties prior to the administrative hearing.

Respondent’s December 5, 2022 Motion to Dismiss [regarding the limitations period] and Complainant’s December 6, 2022 Response were not ruled on by the Tribunal as no evidence had yet been admitted to the hearing record for consideration.

At hearing, Investigator Grimm testified that the matter was moved forward to a Directive /Citation because: it appeared the project was a work in process; it was not clear at the jobsite inspection what had been the last date on which any work had been performed; and the work was not completed. Regarding the interior of the home, Investigator Grimm testified that Complainant showed various areas in the home where there were leaks; however, he further testified that it was not possible to tell whether the leaks were present prior to the project or after the project. Finally, Investigator Grimm could see that there were some interior areas that had “repairs” but that there was no way to know when the repairs took place or who did the repairs.

At hearing, Complainant testified that Mr. Linnel had worked for her on many prior occasions, that she was ready to replace this roof (at the cost of $15,000) instead of doing repairs, and that she hired him to do the work. Complainant stated that Mr. Linnel, Mr. Williams, and “James” started working on the roof in February 2020 and that she had believed that Mr. Linnel was a licensed contractor. Complainant testified that, on the first day of work, she went to the credit union and got the cashier’s check for $2,000.00; she indicated that the she told the employee to write “Partial Payment for Roof Repair at 1749 E. Desert Dr...” into the MEMO section of the check. Complainant indicated that she never paid any money to Glendal Williams or James, only Mr. Linnel. Complainant indicated that, as far as she knew, Mr. Linnel paid for the dumpsters and the roofing supplies used.

Complainant stated that they were bringing material off the roof and that they tore off the roof “down to the wood” and then they put on plywood and felt and some shingles and “some rubber.” Complainant indicated that she did go up the ladder, but did not go onto the roof itself, and she saw shingles and roofing paper on the roof. Complainant stated that they did not “seal the rubber” or put any tarps on the roof.

At hearing, Complainant admitted that, prior to the roof being torn off, there were leaks “off and on,” mentioning leaks in the bedroom, the bedroom closet, and the #2 bedroom; she denied any prior leaks in bedroom #3, the hallways, or the game room. Complainant argued that, after the rain “that night,” there were multiple leaks: more in the bedroom closet and in the hallway; #2 bedroom; #4 bedroom; living room; dining room; game room; kitchen; and, half of the ceilings.

Complainant stated that she called Mr. Linnel the next day and that he had said to her that he was expecting her call, she surmised because he knew they had not sealed the roof. Complainant stated that he offered to repair some of the interior damage, which interior drywall work was being doing February and March, with more work being done in April and May of 2020.

Complainant indicated that Mr. Linnel continued to work on the roof through July 6, 2020 and until January and February of 2021.

Complainant testified that Mr. Linnel never loaned her any money nor did he give her any credit cards to purchase materials for the roof job. Complainant acknowledged that she had not paid $15,000.00 to Mr. Linnel.

At hearing, Complainant acknowledged that others, who were not licensed contractors, had worked on the roof in the past at this home. Complainant mentioned a person named Billy Steward, her own husband, herself and one time, herself with the help of a neighbor [Dustin Matz]; she also believed that, in 1992, there had been a roof replacement involving plywood, felt and rolled roofing.

Dustin Matz testified that he saw Mr. Williams and the younger person working on the roof acknowledging that it was not a patch job due to the dumpsters on site; he stated that he climbed a ladder to look but did not go onto the roof. Mr. Matz said that during week 1 of the work, Mr. Williams and the younger person were tearing off the roof, and then it rained “on the weekend” and on week 2 is when he saw the tarps, water pooling on parts of the roof and an incomplete roof. Mr. Matz recalled seeing “holes” but did not know the status of the work. Mr. Matz recalled Mr. Williams mentioning a person named Gilbert; however he testified he never saw Mr. Linnel on the project.

Glendal Williams met Complainant through Mr. Linnel, and Mr. Williams had, in the past, worked with Mr. Linnel on other of Complainant’s homes/roofs. Mr. Williams testified that he and Mr. Dressler met with Complainant and she discussed the leaks with him wondering if he could repair the roof; he recalled that he told Complainant he could tear off the roof. Mr. Williams specified that Mr. Linnel was not present at that first meeting.

When he first went up on the roof, Mr. Williams indicated that he saw 4” of pooled water and the air conditioning unit was sunken into the roof, noting that it had appeared that was where most of the water was going into the home. As he and Mr. Dressler proceeded with demolition, they discovered four to five different roofs, with multiple finishes, standing water, and repeated prior repairs. Mr. Williams specified that, on the second day of demolition, two feet down, they discovered a false deck/roof supported by 2x4s that had been placed “sideways” to simulate a truss, and a “river” of water on that second deck. Mr. Williams indicate they tore that second deck off and resheeted the area with plywood.

Mr. Williams indicated that he then discussed the matter with Complainant telling her he would take the job and do the best that he could on repairs, but he never agreed to do the full roof. Mr. Williams further indicated that Complainant told him her limit was $4,000.00 and they then agreed on a payment of $500.00 per week for each he and “Jim.” Mr. Williams indicated he and Jim got paid in cash by Complainant. Finally, Mr. Williams testified that although he offered to do some of the drywall work inside, Complainant never paid him for that work and he stopped working because she did not pay him.

Mr. Williams testified that Mr. Linnel never performed construction work on this roof project; however, he recalled that Mr. Linnel came by to give Mr. Williams advice about a support/frame for the 800# air conditioner unit which had sunk into the roof.

Dermont Williams, a son of Complainant (Son), lived with her at this residence in January and February of 2020. At hearing, Son acknowledged that Mr. Linnel had done other work for Complainant on her other properties. Son testified that he saw Mr. Linnel on the roof at this home and that Mr. Linnel called him up to the roof to show him something, but that he (i.e., Son) did not know what Mr. Linnel was doing. Son testified as to the water leaks and damage, both before and after the “rain,” and the mitigation and repair efforts in the home.

Dana Hughes, a niece of Complainant, testified that she knew Mr. Linnel through Complainant but that she had had no discussions with Mr. Linnel or Mr. Williams (or James) about the work. She testified that she visited with Complainant at the home 2 or 3 times in February of 2020 and that she saw the roof being worked on; she indicated that she saw Mr. Linnel, Mr. Williams, and James on the roof.

Alan Dressler, friend of Mr. Linnel, has known Complainant as long as he has known Mr. Linnel. At hearing, Mr. Dressler testified that because Mr. Williams did not have a car with him when he comes to Arizona, Mr. Dressler would drive Mr. Williams around; Mr. Dressler drove him to Complainant’s home multiple times. Mr. Dressler testified that Mr. Williams took the job and that he himself stepped away as they were discussing money. Mr. Dressler was present when Mr. Williams was discussing the condition of the roof (as being beyond repair) with Complainant; however, Mr. Dressler indicated that Complainant refused to spend more money on the roof and, therefore, Mr. Williams had then said to her that all he could do was to then close up the roof. Mr. Dressler indicated that he did help with the demolition, and did help several times (just because he was available to help), but that Mr. Linnel did not participate in the work.

At hearing, Mr. Linnel acknowledged knowing Complainant for years and helping her on multiple properties. Regarding this project at Complainant’s residence, Mr. Linnel testified that he only gave his credit card to Mr. Williams for buying materials/supplies and that he did, on multiple occasions, lend her money. Mr. Linnel denied working on this particular roof project in February of 2020 and noted that Complainant was only reimbursing/paying him for the supplies on the project. However, Mr. Linnel did admit that he had assisted, not as to any demolition or replacement/repair of the roof, but that, on Mr. William’s request, he replaced the frame that would raise it up from its sunken condition and hold the air conditioning unit on top of the roof.

Administrative notice is taken of Respondent’s ROC License record as of April 3, 2023. The ROC License record reflects that Respondent’s License No. 311128 reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

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).

Having heard and considered the evidence, the Administrative Law Judge concludes that the hearing record failed to evidence either a written contract or oral contract with Respondent to replace the roof at Complainant’s home at 1749 E. Desert Drive. Therefore, Complainant failed to establish that Respondent contracted outside the scope of his license which, if proven, would have been a violation of A.R.S. § 32-1154(A)(16). Additionally, Complainant failed to establish that Respondent failed to complete the project in a workmanlike manner in violation which, if proven, would have been a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-08(B). Therefore, Complainant failed to establish that Respondent had failed to take appropriate corrective action following a written directive from the Registrar which, if proven, would have been a violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar dismiss the Complaint and close the matter without any discipline on Respondent’s license.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the Administrative Law Judge Decision. If the licensee accepts the Administrative Law Judge Decision, the Administrative Law Judge Decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, April 3, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Mark G. Saric, Esq.

Resolvere Law PLLC

[email redacted]

The Unlimited Group Inc

DBA: Arizona Discount Home Repair

[email redacted]

Martín Quezada

Registrar of Contractors

c/o Legal Department

[email redacted]

Jack Grimm

[email redacted]

Thomas M. Shaw, Esq.

[email redacted]

Geneva Perkins

[email redacted]

By: OAH Staff