ALJDEC decisions subject to certification as final

2022A-05103-CHC-ROC · Registrar of Contractors · 2022-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Matthew Woods,

COMPLAINANT

v.

Oasis Patio Cover LLC

License No. ROC 316718,

RESPONDENT

No. 2022A-05103-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 30, 2022

APPEARANCES: Complainant Matthew Woods appeared on his own behalf. Alonso Murillo appeared via Google Meet on behalf of Respondent Oasis Patio Cover LLC. Registrar of Contractors Investigator John Peru appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Oasis Patio Cover LLC (Respondent) is the holder of License No. 316718 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 11, 2022, Complainant agreed to have Respondent install a freestanding pergola in his backyard. The total cost was $4,680.00.

On or about June 23, 2022, the Registrar received a Complaint containing ten items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Peru. The jobsite inspection was performed on July 26, 2022.

Investigator Peru then issued a written directive on or about July 28, 2022, 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 August 22, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "Colored silicone smeared all over joints on patio cover."

Investigator’s Observation: Verified.

At the time of this Inspection, there are excessively wide gaps filled in poorly with caulking. The (2) corners at the interior side of the fascia board/ceiling junction, opposite of the gutter side. (Reference Pic# 2, 3).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - "Wrong brackets to secure fascia to roof of patio."

Investigator’s Observation: Verified.

At the time of this Inspection, both parties acknowledge that the strapping used to join the adjacent fascia boards on the (non-gutter side) are not the specified "C Brackets." Additionally, the gutter side fascia boards have no strapping (C Brackets installed at this time). (Reference Pic# 4).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - "Over spray from spray paint on fascia."

Investigator’s Observation: Verified.

At the time of this Inspection, both parties acknowledge there is paint overspray on one of the fascia boards (interior side). (Reference Pic# 5).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - "Scratched fascia and posts.”

Investigator’s Observation: Verified.

At the time of this Inspection, there are scratches/chips on two of the fascia boards (exterior side). (Reference Pic# 6, 7).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - "Some lag bolts are already loose and not securing posts properly."

Investigator’s Observation: Verified.

At the time of this Inspection, there is (1) post where the Lag Screw is not properly attached. (Reference Pic# 8).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - "Weather proofing on roof was installed improperly potential for leak."

Investigator’s Observation: Verified.

At the time of this Inspection, the water proofing on the roof is done incorrectly. The Respondent states they ran out of "Peal and Seal" membrane, and attempted to seal some of the panel joints with sealant/caulking. The areas where sealant/caulking are present are poorly done. The "Peal and Seal membrane was overlapped incorrectly to the slope of the roof. Additionally, the "Peal and Seal membrane has inconsistent overlap on the ceiling perimeter joints. (Reference Pic# 9, 10).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - "Anchor bolts in wrong place and cut them off leaving exposed bolts in slab."

Investigator’s Observation: Verified.

At the time of this Inspection, there are anchor bolts that have been cut down and exposed. (Reference Pic# 11).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - "Large dent on underside of roof panel."

Investigator’s Observation: Verified.

At the time of this Inspection, there are dents on the interior side of the ceiling located at the corners (left and right) on the gutter side. The Complainant states that these dents were caused by the Respondent when they jacked up the roof.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 10 - "Holes in fascia with silicone smeared over them to try and hide it."

Investigator’s Observation: Verified.

At the time of this Inspection there are (2) locations where this has been done (fascia board opposite of the gutter side). (Reference Pic# 12/12)

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original).

A Compliance Jobsite Inspection was held on September 7, 2022. In his notes regarding the same, Investigator Peru found:

Compliance Findings:

At the time of this Inspection, the roof leaks at the right rear corner of the Patio Cover. The Anchor Bolts that were cut down are still exposed at this time. The dent on the underside of the patio ceiling (right rear corner has not been corrected at this time).

Note:

The Respondent did not use the correct sealant per manufacturer specifications.

On September 14, 2022, 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); and A.R.S. § 32-1154(A)(22).

On or about September 29, 2022, Respondent timely e-mailed an Answer to the Registrar.

On or about October 25 2022, a Notice of Hearing was issued setting a hearing on November 30, 2022 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Peru testified as to the Registrar’s involvement and the above timeline.

Investigator Peru testified that while Respondent made a substantial effort in complying with the Directive, the roof was still leaking, anchor bolts remained exposed and there was still a dent or crease under the roof panel.

As to the issue with the sealant, Investigator Peru testified that this could be what was causing the continual leak.

Complainant offered one exhibit into evidence and testified generally that he was disappointed with the project and lack of communication.

Complainant testified that he researched the use of the Henry’s product and believed that this was not suitable to coat the roof.

Further, Complainant testified that he agreed to drop the complaint about the anchor bolts and the dents, if the leaking issue had been properly resolved. Complainant testified however, that the roof was still leaking, therefore, he was not going to drop the other two complaint items.

Respondent presented the testimony of Alonso Murillo.

Mr. Murillo testified generally that he apologized for the work and it should have done right the first time. He also testified that he wanted to make it right.

In addition, Mr. Murillo testified that because they had to pay for the replacement materials from their own funds, this caused the delay in the final repairs.

Mr. Murillo also testified that he did not repair the anchor bolts or the dents because he believed he complied with Complainant’s agreement not to pursue those items. Further, with the leaking, Mr. Murillo testified that testing the roof with a hose was not the same as rainfall.

Administrative notice is taken of Respondent’s prior License record on December 14, 2022. Such prior License record reflects that Respondent’s License No. 316718 was first issued on December 2, 2017, and reflects that there was one open complaint, namely the present complaint, and one resolved case.

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).

The preponderance of the evidence established, and Mr. Murillo admitted, 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).

As to the issue regarding the corrective work, the evidence 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). Despite Mr. Murillo’s best efforts, the roof was still leaking, and the anchor bolts and dents were not properly repaired.

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. 316718 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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)(7), 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 30 days from the date of that certification.

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-137160-45720000Done this day, December 14, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Oasis Patio Cover LLC

[email redacted]

Matthew Woods

[email redacted]

By Miranda Alvarez

Legal Secretary

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