ALJDEC decisions subject to certification as final

2022A-05296-CHC-ROC · Registrar of Contractors · 2022-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ruben Wilkinson,

COMPLAINANT

Man Of All Trades Inc

License No. ROC 325496,

RESPONDENT

No. 2022A-05296-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 4, 2022

APPEARANCES: Complainant Ruben Wilkinson appeared on his own behalf via Google Meet. Ricardo Jimenez Perez appeared via Google Meet on behalf of Respondent Man Of All Trades Inc. Registrar of Contractors Investigator Jack Grimm appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Man Of All Trades Inc. (Respondent) is the holder of License No. 325496 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 17, 2022 Ruben Wilkinson (Complainant) agreed to have Respondent repair/replace his roof. The total cost was to be $21,155.00.

On or about June 29, 2022, the Registrar received a Complaint containing eleven items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on August 1, 2022.

Investigator Grimm then issued a written directive on or about August 9, 2022, 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 August 30, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #4: Patio roof wood decking installed by contractor is unsecure underneath rolled roofing.

Investigators Observation: Plywood roof decking that was installed on the back patio has movement. Observed soft spots and locations that appear to not be nailed correctly. Extensive (total replacement on back patio) roof sheathing replacement requires a building permit. Called the City of Phoenix building department and verified a permit was required.

*Obtain required building permit from local governing code enforcement authority and obtain required inspections and approvals regarding the replacement of the patio roof sheathing. Correct locations of soft and poorly fastened locations by appropriate means.

Governing Rule: 32-1154(A)(2)(a) Departure from or disregard of a building code. 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #5: Rolled roofing is wrinkled which will shorten the life span.

Investigators Observation: Observed a location on the rear patio roof where the rolled roofing has raised and the roofing membrane has cracked and needs to be corrected.

*Correct locations of raised/wrinkled/cracked rolled roofing.

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

Complaint Item #6: Nails penetrated through the fascia in various locations.

Investigators Observation: Observed location were the nails used to install the gable end tile trim penetrate the fascia. Nails used are also rusting, galvanized nails should be used in this application.

*Correct locations of nail penetrations through fascia and soffit and use correct rust free nails.

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

Complaint Item #7: Patio ceiling left unpainted after damages were repaired.

Investigators Observation: Underside of back patio ceiling has had drywall repairs that are incomplete and unpainted. Homeowner states the damage was caused from the workers in the roof above.

*Completed drywall repairs and paint.

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

Complaint Item #8: Tiles installed unevenly leaving a large gap at the edge that does not cover with the ridge cap.

Investigators Observation: Tile lines (bottom to top) are crooked and irregular allowing one end to be short and the tile trim has poor coverage. Other issues with gaps include locations near the valleys were tiles are sliding down and causing gaps. Poor/irregular cuts and debris in the valleys. Observed locations of poor or missing mud balls. Observed tiles that appear to be caulked together. Tiles should be solid and intact.

*Correct crooked and irregular tile and correct locations with poor overlap. Correct locations of poor cuts, sliding tile and debris left under tile and in valleys. Correct poor or missing mud balls as needed. Replace caulked together tile.

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

Complaint Item #9: Fascia board and patio roof decking have not been painted.

Investigators Observation: Observed location were new fascia board and trim was installed and is unpainted. Underside of overhang is also not painted were new plywood was installed.

*Paint and touch up were needed.

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

Complaint Item #10: Fascia board needs paint touch up in various locations due to stains caused by dirty hand prints from the roofers.

Investigators Observation: Fascia board was stained and left dirty by workers.

*Paint and touch up were needed.

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

Complaint Item #11: Pipe and vent flashing was installed damaged.

Investigators Observation: Observed by photos pipe and vent flashing that is poorly installed or damaged.

*Correct locations of poorly or damaged installed vents, t-tops and flashings and paint to match roof per industry standards.

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

(All errors contained in the original).

On September 1, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); 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 16, 2022, Respondent e-mailed an Answer to the Registrar, stating generally that there were delays in obtaining materials and that he would like an opportunity to correct the items.

On or about October 3, 2022, a Notice of Hearing was issued setting a hearing on November 4, 2022 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Grimm testified that a representative from Respondent failed to appear at the Jobsite Inspection, and that none of Respondent’s mail or email came back as “undeliverable”.

Investigator Grimm testified further that most items would have taken a few days to repair. Investigator Grimm testified that while obtaining the permit could take some time, he would have granted additional time to complete that Directive had Respondent demonstrated that he was in the process of obtaining the same.

Ruben Wilkinson testified on his own behalf and offered two exhibits into evidence.

Complainant testified generally that while he acknowledged there could be delays in obtaining materials, he believed that the project was unnecessarily delayed by Respondent.

As to the work which was performed, Complainant testified that it seemed like Respondent’s workers were making too many tile cuts which then led to a shortage of about 300 tiles. Because of this, there was an agreement to use different tiles, however those tiles would not interlock properly. Thus, the parties agreed to have Respondent re-roof the entire house, but again there were delays in obtaining the new tiles.

Mr. Wilkinson also testified that there was incomplete work as the underlayment was left exposed, there was dry rot on the fascia, and there were still broken tiles on the roof.

In addition, Mr. Wilkinson testified that there was no contact from Respondent during the corrective work period, and it was not until after the Directive expired that Respondent contacted him to schedule a time for the corrective work.

Ricardo Jimenez Perez testified on behalf of Respondent.

Mr. Jimenez Perez testified generally that he acknowledged the delays and that there was no excuse for the same, but that the tile manufacturer (Eagle Brand), and drivers strikes all contributed to the delays.

Mr. Jimenez Perez testified that when he received the Jobsite Inspection notice, he e-mailed Investigator Grimm informing him that he could not attend and requested that the inspection be rescheduled.

Mr. Jimenez Perez also testified that he did not see the original Written Directive as the e-mail had gone into his spam folder and that he had not been to his office since May to collect him mail.

Finally, Mr. Jimenez Perez testified that he did not know that he needed a permit for the plywood.

Administrative notice is taken of Respondent’s prior License record on November 18, 2022 Such prior License record reflects that Respondent’s License No. 325496 was first issued on July 28, 2019, and reflects that there was one open complaint, namely the present complaint.

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 that Respondent failed to obtain a permit in violation of A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Plywood roof decking had movement, and soft spots which were not nailed correctly; the was raised, wrinkled and cracked rolled roofing; nails were penetrating through the fascia and were rusting; there were areas where patching and painting on the patio ceiling; the roof tile lines were crooked irregular, there was poor or missing mud balls; and the fascia board was stained and left dirty and was not painted. 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 Respondent failed to complete the corrective work following the Directive being issued. The tribunal does not find Mr. Jimenez Perez’s explanation persuasive that he did not receive the Written Directive since he received the jobsite inspection notice from Investigator Grimm. Even if this was the case, it was still Mr. Jimenez Perez’s responsibility to follow up with Investigator Grimm as to the results from the inspection, and there was no evidence presented that this occurred. 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. 325496 for a period of ten days.

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)(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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001

-137160-45720000Done this day, November 18, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Ruben Wilkinson

4830 W Gwen St

Phoenix, AZ 85339

[email redacted]

Man Of All Trades Inc

6751 N Sunset Blvd Ste 320

Glendale, AZ 85305

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

-137160-45720000