ALJDEC - Licensing
2022A-07242-CHC-ROC · Registrar of Contractors · 2023-02-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shelly Lokietz - Cigel,
COMPLAINANT,
v.
Coletti's Construction & Roofing, PLLC
License No. ROC 331171,
RESPONDENT
No. 2022A-07242-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 23, 2023, 1:00 P.M.
APPEARANCES: Complainant Shelly Lokietz - Cigel appeared on her own behalf; Mark Coglietti, owner and qualifying party, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Coletti's Construction & Roofing, PLLC (Respondent), is the holder of License Number 331171 issued by the Registrar of Contractors (Registrar).
2. On or about August 26, 2022, Shelly Lokietz - Cigel (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with roofing work performed by Respondent at a residence in Kingman, Arizona (“project”).
3. The Registrar issued a Jobsite Inspection Notice, dated September 7, 2022, notifying the parties an inspection would take place on September 20, 2022, (See Respondent’s Exhibit No. 2). Thereafter, the Registrar issued a Jobsite Inspection Notice, dated September 15, 2022, notifying the parties an inspection would take place on September 26, 2022.
4. The Registrar performed an inspection of the project on September 26, 2022. Thereafter, the Registrar issued a Written Directive from the Registrar, dated September 28, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by September 17, 2022. (See Respondent’s Exhibit No. 6). Apparently discovering or being advised of the typographical error in the deadline date in the Directive, which was a date before its issuance date, the Registrar re-issued the Directive, dated September 28, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 17, 2022 (“Directive period”), as follows:
Compliance Item: 1 - Shingles lifting and curling off Roof Edge
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Workmanship Standards for Licensed Contractors (WSLC)
ROOFS - ASPHALT AND FIBERGLASS COMPOSITION (3 TAB)
3. PD Fish mouths and/or curling.
AT None.
CR Contractor should make necessary repairs.
Governing Rule: Violation of any rule adopted by the Registrar;
Compliance Item: 2 - Nail End Sticking out of Shingles (Pointed end of Nail)
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
WSLC: ROOFS - ASPHALT AND FIBERGLASS
4. PD Improper nailing.
AT Nailing should be per approved schedule.
CR Contractor should make necessary repairs. Excessive nailing (more than
six fasteners per shingle) should require shingle replacement.
Compliance Item: 3 - Multiple Shingles not secured with nails
Investigator’s Observation: Workmanship Standards for Licensed Contractors (WSLC)
ROOFS - ASPHALT AND FIBERGLASS COMPOSITION (3 TAB)
3. PD Fish mouths and/or curling.
AT None.
CR Contractor should make necessary repairs.
Compliance Item: 4 - Nails not properly sunk into shingles, crooked, overdriven and not sealed, under driven, bent
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
WSLC: ROOFS - ASPHALT AND FIBERGLASS
4. PD Improper nailing.
AT Nailing should be per approved schedule.
CR Contractor should make necessary repairs. Excessive nailing (more than six fasteners per shingle) should require shingle replacement.
Compliance Item: 11 - Granules on shingles of the finished section of the
roof were damaged from workers walking on, using a wheel barrow & dragging
shingle bundles across.
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 12 - Exposed Nails not sealed on flashings
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Workmanship Standards for Licensed Contractors (WSLC)
7. PD Flashings and jacks improperly installed.
AT None.
CR Contractor should make necessary repairs.
Compliance Item: 13 - Shingles on Edge of roof not cut evenly and have
lifted
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Workmanship Standards for Licensed Contractors (WSLC)
ROOFS - ASPHALT AND FIBERGLASS COMPOSITION (3 TAB)
3. PD Fish mouths and/or curling.
AT None.
CR Contractor should make necessary repairs.
Compliance Item: 14 - There is an exposed gap along side of the roof line
where it transitions to a raised roof. No flashing or sealant used.
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
WSLC: ROOFS - ASPHALT AND FIBERGLASS
7. PD Flashings and jacks improperly installed.
AT None.
CR Contractor should make necessary repairs.
23
Compliance Item: 15 - Drip edge bent and lifted in multiple locations
around house
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
WSLC: ROOFS - ASPHALT AND FIBERGLASS
7. PD Flashings and jacks improperly installed.
AT None.
CR Contractor should make necessary repairs.
23
Compliance Item: 21 - Arizona Rooms “Elastomeric Coating” is lifting, has
bubbles, tears & holes.
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 21 - Prior to applying coating and fabric to the Arizona
Room plywood, the plywood was not properly prepped &cleaned. Nails, staples,
dirt and other roofing debris can be seen directly under the material and
coating.
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 23 - New Down Draft/Roof Jack installed by Contractor
was not secured to roof properly
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 24 - Debris of Nails, Staples & shingles in Swamp
Cooler/Roof Jack
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 25 - Swamp Coolers blown off roof due to not being
attached or secured to down draft/roof jack when reinstalled.
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 26 - When the Swamp Coolers were blown off the roof
they left Multiple holes through the roof, and the wood underneath the
surrounding area is now compromised, soft, unable to walk on, wood showing
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
5. Further, in the Directive, apparently erroneously listed among the items under “ITEMS NOT REQUIRING CORRECTION,” were the following three items to be corrected:
Compliance Item: 5 - Torn Shingles on roof and ridge cap
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Compliance Item: 7 - Ridge Caps not nailed correctly, crooked, overdriven
and not sealed.
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
WSLC: ROOFS - ASPHALT AND FIBERGLASS
4. PD Improper nailing.
AT Nailing should be per approved schedule.
CR Contractor should make necessary repairs. Excessive nailing (more than six fasteners per shingle) should require shingle replacement.
5. PD Crooked or unsightly ridges and hips.
AT None.
CR Contractor should make necessary repairs.
Compliance Item: 8 - Edges of Ridge caps not sealed and now curling up
Investigator’s Observation: This complaint item is verified.
Respondent shall correct by appropriate means.
Workmanship Standards for Licensed Contractors (WSLC)
ROOFS - ASPHALT AND FIBERGLASS COMPOSITION (3 TAB)
3. PD Fish mouths and/or curling.
AT None.
CR Contractor should make necessary repairs.
6. After being informed by Complainant that Respondent had not performed any corrective work, the Registrar then issued a Citation to Respondent, dated November 10, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(b)) for failure to perform work in accordance with applicable building codes and professional industry standards;
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
8. The Registrar issued a Notice of Hearing, dated December 14, 2022, that set a hearing for January 23, 2023, at 1:00 P.M.
9. At the January 23, 2023, hearing, Complainant Shelly Lokietz-Cigel testified on her own behalf and presented the testimony of Richard Hauck. Respondent presented the testimony of Mark Coglietti, owner and qualifying party, and Dane Johnson. Steve Philpott, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A - F and Respondent’s Exhibits numbers 1 - 6 and letters A - I.
10. At the hearing, Respondent preliminarily raised a concern that the original Investigator on the project, Steve Klein, was not present at the hearing as a witness, apparently because he was no longer employed by the Registrar. In that Respondent was unaware that Mr. Klein would not be present to testify, the Tribunal offered to continue the hearing to give Respondent the opportunity to subpoena Mr. Klein. Respondent declined the opportunity and requested that the hearing go forward.
11. Respondent also raised a concern that it had not received all the documentation and audio files from the Registrar pursuant to a public records request and had been advised that it would take 30 days from the date of its request to receive them, which had yet to pass. The Tribunal offered to continue the hearing to give Respondent the opportunity to receive and review the requested documents and files. Again, Respondent declined the opportunity expressly waiving its right to those documents and files and requested that the hearing go forward.
12. The Investigator on behalf of the Registrar testified that he had no involvement with the project and that the previous Investigator, Steve Klein, no longer was employed with the Registrar. He indicated he was able to and did testify based on his review of the Directive, the Job inspection notes and photographs, and the notes of Mr. Klein.
13. Complainant testified, as herein relevant to the Citation, consistently with her exhibits. She specifically testified that Respondent requested and was given an opportunity by Complainant to “look at the roof” on September 19, 2022, (See Complainant’s Exhibit B) and that Dane Johnson visited the property that very day. She stated Respondent then came back unannounced in the very early morning on September 25, 2022, the day before the Registrar job inspection, (See Complainant’s Exhibit D, Respondent’s Exhibit C), after its request for “another” look at the roof, but stated she declined the request. She further testified that with regard to the Directive, she initially stated that Respondent could perform corrective work on the property weekdays from 7:00 A.M. to 5:00 P.M. (See Complainant’s Exhibit E). She stated when Respondent indicated those hours were not consistent with the hours available for work under the contract, Complainant expanded Respondent’s access to the property and informed Respondent on October 6, 2022, that it could come on the property 24/7 to perform corrective work. (See Complainant’s Exhibit E). She testified she did not hear anything further from Respondent and that no corrective work was performed.
14. Richard Hauck, Complainant’s brother-in-law, testified on behalf of Complainant, as herein relevant to the Citation, that he was present during the proposal estimate and he was the person that signed the contract with Respondent. He testified he noticed the legs to the swamp coolers were bent and would need to be replaced, but never told anyone that he would get new legs for the coolers and bolt them down. He further testified that he never told Mr. Johnson or anyone else to not bolt the coolers down.
15. Mark Coglietti, the owner and qualifying party of Respondent, testified on behalf of Respondent, as herein relevant to the Citation, consistently with his comprehensive set of exhibits. (Respondent’s Exhibits A - I). While Mr. Coglietti provided most of the testimony with regard to Directive items, he testified he was not present at the jobsite inspection and there was no evidence that he was ever on the roof after the Directive was issued to observe these items and obtain first-hand knowledge.
16. Dane Johnson, Mark Coglietti’s son-in-law, testified on behalf of Respondent, as herein relevant to the Citation, consistent with his written statement. (Respondent’s Exhibit 1). He stated that he was an employee of Respondent and that he starting working on the project after it had started. After the project was completed, he testified that he came to the property on September 19, 2022, to take photographs of the swamp coolers that had blown off the roof and was given access, but also came to the property the day before the job site inspection on September 25, 2022, but was not allowed access. He stated he was Respondent’s representative at the job site inspection on September 26, 2022. He further testified that Richard Hauck advised him not to replace the bent legs to the swamp cooler and that he, Richard Hauck, would be replacing the legs and attaching the coolers to the roof.
17. Administrative notice is taken of the Registrar’s public website which reflects the CR-42 Roofing license was first issued on October 30, 2020. The site also reflects that the license was suspended due to non-renewal as of November 1, 2022, and that no disciplinary action was taken against the license. Moreover, the Registrar’s public website also reflects that Coletti Construction, Inc., to which Mark Coglietti was the qualifying party, previously had a CR-42 Roofing license issued on December 9, 1998, and had been renewed through December 31, 2016, and was now inactive. The site reflects no disciplinary action taken against that license.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. The suspension status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
4. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
5. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
7. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rules allegedly violated in this case are Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,” and Arizona Administrative Code Rule 4-9-108(B) which requires that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”
8. With regard to Respondent’s right to perform an inspection of the work complained of, A.R.S. § 32-1155(D) provides:
The registrar may not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:
The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.
The contractor's work has been subject to neglect, modification or abnormal use.
9. A.R.S. § 32-1155(D)(1). Preliminarily, Respondent contended that the Registrar was precluded from issuing a Citation in this case because Respondent had not been afforded the opportunity to inspect the work complained of within 15 days of the date of receipt of the Jobsite Inspection Notice under A.R.S. § 32-1155(D). Respondent’s argument in this regard lacks merit. First, the initial Job Site Notice Respondent, dated September 7, 2022, effectively allowed Respondent 15 days to inspect the project up until September 22, 2022, even though the Registrar inspection was scheduled for September 20, 2022. Thereafter, the second Jobsite Inspection Notice, dated September 15, 2022, gave Respondent until September 30, 2022, to inspect the project. In all, Respondent was given 23 days to inspect the project (September 7 - September 30), or 19 days before the September 26, 2022, job inspection by the Registrar (September 7 - 26).
Moreover, even had Respondent not been given the required 15 days to inspect, which it had, the evidence reflected that Respondent was in fact given the opportunity to inspect the roof by Complainant after the Jobsite Inspection Notice was issued. On September 19, 2022, Respondent asked to “look at the roof” (See Complainant’s Exhibit B), which was agreed to by Complainant. Dane Johnson visited the property that very day (within 15 days of either Jobsite Inspection Notice), a fact he peculiarly failed to disclose in his written statement, (See Respondent’s Exhibit 1), and also absent in Respondent’s post-Complaint timeline of events. (See Respondent’s Exhibits B, C). Mr. Johnson testified at the hearing that he visited the project on September 19, 2022, after receipt of the Jobsite Inspection Notice, not to inspect the work but only to photograph the swamp coolers that had blown off the roof a month before. Even if it were true that he was there only to take such photographs, Complainant nevertheless still provided him an opportunity to inspect the work at that time within 15 days of the Jobsite Notice, which is all the statute requires, and he evidently chose not to take that opportunity.
Seemingly overlooking that it was given an opportunity to perform an inspection and did visit the property on September 19, 2022, Respondent then contended that Complainant refused it access to inspect the work by rejecting Respondent’s later request for “another” look at the roof on September 25, 2022, (See Complainant’s Exhibit A), when Respondent showed up at the property unannounced very early that morning. (See Complainant’s Exhibit D; Respondent’s Exhibit C). The Tribunal finds that Complainant’s refusal was not unreasonable; there is no statutory requirement for a second opportunity to inspect the work under A.R.S. § 32-1155(D)(1). Accordingly, the Tribunal finds that the Registrar was not precluded from issuing the Citation.
10. A.R.S. § 32-1154(A)(3) (Arizona Administrative Code Rule 4-9-108(a)). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner, did not comply with Arizona Administrative Code Rule 4-9-108(a), and consequently its license should be disciplined for a violation of A.R.S. § 32-1154(A)(3).
Respondent addressed and disputed Compliance Items 1, 11, 13, 14, 15, 21(first), 21(second), 23, 25, and 26 of the Directive. (Respondent’s Exhibit G). As a threshold matter, in evaluating the evidence in this regard, it is noted that Mr. Johnson attended the jobsite inspection and had the opportunity to observe the Directive items. Notably, in his written statement and testimony at the hearing, Mr. Johnson did not dispute that any of the Directive items existed. Rather, his testimony focused on whether Respondent caused or was otherwise responsible for the Directive item. Mr. Coglietti, on the other hand, disputed that some of Directive items existed even though he was not at the jobsite inspection and did not observe the Directive items first-hand but could only testify in that regard from the Investigator’s photographs.
Compliance Item No 1. Respondent did not deny that shingles were lifting and curling of the roof edge. Instead, Respondent claimed it would take time for them to fully relax and would seal with time, heat, and sun exposure. (Respondent’s Exhibit I). Respondent gave no time frame as to when this deficiency would remediate on its own even though the job was completed in the hot month of July and the roof was exposed to the heat of the sun through August and September. Respondent provided no evidence that the shingles would remediate themselves other than its unsupported assertion. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 11. Respondent did not deny that the granules on the shingles had been damaged. However, Respondent speculated that the cause could have been the owners walking on the roof or the coolers rolling across the roof. (Respondent’s Exhibit I). There was no evidence of the owners walking across the roof or the coolers being blown off the roof causing such damage. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 13. Respondent did not deny the shingles on the edge had lifted, but denied that they were not cut evenly. Respondent asserted that because the pre-existing metal roof edge was not straight, the edge shingles would follow the metal edge and consequently not be straight. Respondent claimed that manufacturer’s specifications allow for a 1/2-inch overhang of a metal overhang. (Respondent’s Exhibit I). Respondent did not assert whether the specifications addressed a scenario involving an uneven metal edge which if not taken into account would result in an uneven shingle edge. Even though the specifications were not available or submitted into evidence by Respondent, the Tribunal finds it doubtful they would call for an uneven shingle edge under any circumstances. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 14. Respondent asserted that it used sealant under the shingles but did not address the gap mentioned in the Directive. (Respondent’s Exhibit I). The Tribunal understood this Directive item to apply to the lack of sealant in the gap in the transition to a raised roof, not sealant generally under the shingles. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 15. Respondent denied responsibility for damage to the metal edge because it asserted that it did not install the metal edge. (Respondent’s Exhibit I). Regardless whether or not Respondent installed the pre-existing metal edge, Respondent could still be responsible if it damaged the metal edge during the course of the project. However, there was no evidence offered to show the condition of the metal edge before the project started so there is insufficient evidence to find that it was Respondent that damaged the edge or failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 21 (first). Respondent did not deny the presence of bubbles, tears, and holes but asserted that it followed the manufacturer’s specifications. However, no specifications were presented into evidence and while Respondent focused on the bubbles, it could not and did not claim the tears and holes were acceptable. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 21 (second). Respondent did not directly contradict the presence of nails, staples, dirt, and other debris and presented no evidence to dispute it. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to this item.
Compliance Item No. 23. Respondent asserted the roof jack was installed correctly but offered no evidence other than its unsupported assertion. The Tribunal finds that Respondent failed to perform this work in a professional and workmanlike manner with respect to this item.
Compliance Item Nos. 25, 26. There was no dispute that the swamp coolers were blown off of the roof during a weather storm in large part due to the failure to reattach them to the roof during reinstallation after the project was completed. (Complainant’s Exhibit A). There was a great deal of conflicting testimony concerning which party had the responsibility to reattach the coolers. Dane Johnson testified that Richard Hauck told him that he, Mr. Hauck, would be replacing the bent legs of the coolers and reattaching the coolers to the roof himself. Richard Hauck denied such a statement, explaining he commented to Mr. Johnson on the bent legs but never told him not to bolt the coolers down or that he would do it himself.
The Tribunal finds Mr. Hauck’s version of the facts to be more credible. In attempting to reconcile this conflicting testimony, the Tribunal finds it peculiar that Mr. Johnson would not have told his version of the conversation he had with Mr. Hauck to the Investigator at the jobsite inspection. The Jobsite Inspection notes reflected that the Investigator “questioned contractor again did he anchor legs to the roof Contractor said he did not anchor legs to the roof.” It is significant that the notes are lacking any explanation as to why Mr. Johnson did not anchor the legs, which would seem to be a natural explanation one would give after admitting to not bolting the legs of a cooler that later blew off of a roof. Considering the Investigator felt that Mr. Johnson’s admission that he did not bolt the legs down was noteworthy enough to include in his notes, the Tribunal believes the Investigator would similarly have noted that Mr. Johnson was directed not to bolt the legs by Mr. Hauck, if in fact Mr. Johnson related such a direction to the Investigator.
Further, the Tribunal finds it curious that if Mr. Hauck had in fact directed that the coolers not be reattached to the roof, creating a risky and potentially dangerous condition, that Respondent would not have documented that communication in some way in an attempt to protect itself from potential liability for any consequences for leaving coolers unattached. There was no evidence of such documentation presented.
It is worth noting that Respondent claimed it “had a verbal agreement with Mr. Hauck that Mr. Hauck was going to put on the new legs on the master coolers.” (Respondent’s Exhibit I). Firstly, it does not necessarily follow from a statement regarding new legs that one should not bolt the existing legs down in the interim. However, even if there was a verbal agreement, such an agreement would not be binding according to the “Terms” of the contract/proposal between Respondent and Mr. Hauck which states “Verbal understandings and agreements with representatives shall not be binding unless set forth therein.” There was no evidence presented that this “verbal agreement” was set forth anywhere in order to be binding under the contract. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to these items.
Compliance Item Nos. 5, 7, 8. Although these items expressly required correction, they were apparently erroneously listed under “Items Not Requiring Correction.” While Respondent pointed out the error, (Respondent’s Exhibit E), Respondent offered no evidence that it was confused by the error or that it believed because they were listed under items not needing correction, these items did not in fact require correction. Indeed, Mr. Coglietti testified that he did not dispute that these three items were deficient and needed to be corrected. With regard to Compliance Item No. 7, he agreed that the ridge cap was not nailed down correctly but denied it was crooked. (Respondent’s Exhibit I). He provided no evidence that it was not crooked other than his unsupported assertion. The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to these items.
Compliance Item Nos. 2, 3, 4, 12, 24. Sufficient evidence was presented to establish these items existed. Respondent did not address nor did it dispute these items. (Respondent’s Exhibit I). The Tribunal finds that Respondent failed to perform work in a professional and workmanlike manner with respect to these items.
11. A.R.S. § 32-1154(A)(3) (Arizona Administrative Code Rule 4-9-108(b)). Complainant has not presented sufficient evidence to establish that Respondent’s work failed to perform work in accordance with any applicable building codes and professional industry standards or otherwise did not comply with Arizona Administrative Code Rule 4-9-108(b). Each and all of the Directive items referenced an alleged violation of Arizona Administrative Code Rule 4-9-108(a) and none of them referenced an alleged violation of Arizona Administrative Code Rule 4-9-108(b). Accordingly, the Tribunal does not find any violation of Arizona Administrative Code Rule 4-9-108(b).
12. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). There is no dispute that corrective work was not performed prior to expiration of the Directive period or thereafter. Rather, Respondent asserts that there was a valid justification for not performing corrective work because on October 3, 2022, Complainant imposed “additional and unnecessary restrictions” upon Respondent to do the work, namely, that she would only allow Respondent on the property weekdays from 7:00 A.M. to 5:00 P.M. for corrective work. Respondent contends those hours were restrictive and unreasonable because it had been given additional time periods, specifically earlier hours, to do work under the contract.
The Tribunal finds this access given by Complainant to the property to be reasonable. Despite the fact those hours might have differed from the hours Respondent was permitted to perform work under the contract (even though no hours were specified in the contract), when Respondent objected to the limited time period, Complainant informed Respondent on October 6, 2022, she would “allow access to the property 24 hours a day, 7 days a week allowing you as much time as needed.” to perform corrective work. (See Complainant’s Exhibit E). She testified she did not hear anything further from Respondent even though Respondent had 11 more days to complete the corrective work. Respondent offered no evidence that it responded to Complainant after being given unlimited access to the property or that it performed any corrective work. Accordingly, the Tribunal finds that the so-called restriction, allowing work between the hours of 7:00 A.M. and 5:00 P.M., which three days later Complainant expanded to allowing work 24 hours a day, does not constitute a valid justification for failing to perform corrective work.
13. In conclusion, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with regard to Compliance Item Nos. 1, 2, 3, 4, 5, 7, 8,11,12,13,14, 21(first), 21(second), 23, 24, 25, and 26, and for a violation of A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Coletti's Construction & Roofing, PLLC’s, License Number 331171 is suspended for five days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 the outstanding prior civil penalty.
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 decision. If the licensee accepts the Administrative Law Judge Decision, the 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, February 13, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Respondent Coletti’s Construction & Roofing PLLC 1875 E Suffock Ave Kingman, AZ 86409
[email redacted]
Complainant Shelly Lokietz - Cigel 1495 W. Dambro Ranch Rd. Kingman, AZ 86409
[email redacted]
By: OAH Staff