ALJDEC - Licensing

2022A-07853-CHC-ROC · Registrar of Contractors · 2023-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Meredith Gammon,

COMPLAINANT

Southwest Roofing & Cooling LLC

License No. ROC 305806,

RESPONDENT

No. 2022A-07853-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 19, 2023

APPEARANCES: Complainant Meredith Gammon appeared on her own behalf. Erick Solis, Owner and Qualifying Party, appeared on behalf of Respondent Southwest Roofing & Cooling LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Southwest Roofing & Cooling LLC (Respondent) is the holder of License No. 305806 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 5, 2021, Meredith Gammon (Complainant) entered into a contract with Respondent for the removal of the existing roof and installation of a new roof system.

On or about September 10, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Ruben Perez. After a jobsite inspection, Investigator Perez issued a written directive 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 November 4, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 2: Roof leaking by front door-reported and “repaired” 08/11/2021; -reported and “repaired” 08/14//2022;

Investigator’s Observation: Respondent reported they are working on repairs after water penetrated above front door. Respondent to determine cause and complete corrections by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Item 8: Flashing installed incorrectly on entire roof.

Investigator’s Observation: Roof flashing was observed with sealant separating in some areas. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 9: Water pooling above skylights because there is no water diversion.

Investigator’s Observation: Approximately 1” of water ponding was observed above sky light 30 minutes after flooding. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 15: Roof sub layer has holes from fasteners and screws the roofers used. They were supposed to replace any damaged sub layer after inspecting it when they removed the original tile roof

Investigator’s Observation: Respondent reported they are replacing sub-floor boards as part of their repairs. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Following the issuance of the written directive, the deadline for compliance was extended to November 10, 2022.

On or about November 29, 2022, Investigator Perez conducted a compliance jobsite inspection. At that time, Investigator Perez realized he had incorrectly directed Respondent to correct a skylight when he should have included all skylights.

On or about December 6, 2022, Investigator Perez issued an Updated Written Directive from the Registrar that provided, in pertinent part, as follows:

. . . .

DIRECTIVE REQUIREMENTS

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

Item 8: Flashing installed incorrectly on entire roof.

Investigator’s Observation: Roof flashing was observed with sealant separating in some areas. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 9: Water pooling above skylights because there is no water diversion.

Investigator’s Observation: Approximately 1” of water ponding was observed above sky light 30 minutes after flooding. Respondent to correct all sky lights on roof by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Following the issuance of the updated written directive, the deadline for compliance was again extended to January 6, 2023.

On or about January 23, 2023, Investigator Perez conducted a compliance jobsite inspection. At that time, Investigator Perez noted that two of the items had not been corrected.

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).

Investigator Perez testified as to his observations of the project during the jobsite inspection and compliance jobsite inspections.

Complainant testified that in August 2021, the initial leaks started. Complainant stated that in 2022, Respondent came out on five separate occasions to repair the work, but the leaks remained.

Mr. Solis testified that Respondent never contracted to perform any work related to the skylights

Administrative notice is taken of Respondent’s prior License record on May 8, 2023. Such prior License record reflects that Respondent’s License No. 305806 was first issued on June 14, 2016, and is active. Such prior License record also 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).

The evidence established 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).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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. 305806 for a period of one day.

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)(5), unless Respondent tenders payment of any 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, May 8, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Ruben Perez Sr.

[email redacted]

Meredith Gammon

[email redacted]

Southwest Roofing & Cooling LLC

[email redacted]

By: OAH Staff