ALJDEC - Licensing

2022A-08331-CHC-ROC · Registrar of Contractors · 2023-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kira O'Neal,

COMPLAINANT

Strategy Builders Contracting LLC

License No. ROC 318439,

RESPONDENT

No. 2022A-08331-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 24, 2023 and April 19, 2023.

APPEARANCES: Complainant Kira O’Neal appeared via Google Meet on her own behalf. Respondent Strategy Builders Contracting LLC was represented by Patrick Lopez who appeared via Google Meet. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Strategy Builders Contracting LLC (Respondent) is the holder of License No. 318439 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 6, 2022, the Registrar received a Complaint containing one item against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. A jobsite inspection was performed on November 4, 2022.

Investigator Johndrow then issued a written directive on or about November 4, 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 November 25, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Roof replaced November 2, 2021 and by August 2022 the roof was leaking in 4 places. Strategy Builders refuses to take responsibility and repair the roof”

Investigator’s Observations: Verified. The complainant pointed out and showed me the four leak locations. I observed improper flashing with open voids along the rake wall, above the back entry on the north and south sides.

I observed the failure to use a roof jack on the gas line routed through the roof on the west side of the HVAC unit, which has an open void around the pipe. This location is directly above the guest bathroom.

Additionally, the flashing for the roof ducting located above the master bathroom has been poorly sealed and a tear in the roofing material was observed.

All areas observed are consistent, in location, to be the cause of the damage observed on the ceilings, in the four locations, in the interior of the residence.

The respondent stated at the time of this inspection that they are able and willing to perform the necessary corrections for the complainant.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original).

On January 5, 2023, Investigator Johndrow completed a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Johndrow found the following:

The site inspection was performed on this date and time. In attendance with the complainant was Andrew O’Neal (spouse). The respondent was not present for this inspection.

A previous compliance inspection was scheduled and conducted on 12/2/2022. At the meeting, the complainant agreed to allow additional time for due date on the written directive to allow the respondent to complete the interior repairs. The respondent was present at that inspection.

It should be noted, although not part of the written directive, the respondent stated to the complainant a written warranty would be provided for the entire roof. The statement was made to the complainant at the first compliance inspection on 12/2/2022. The respondent additionally advised the investigator a written warranty would be provided; these statements were made during a couple of phone conversations and was witnessed at the first compliance inspection. To date the respondent has failed to provide the written warranty information to the complainant.

This Compliance Inspection was to evaluate the current conditions of items requiring corrective action as stated on the Directive. Those items are listed below.

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

As stated on Directive: Complaint Item 1: “Roof replaced November 2, 2021 and by August 2022 the roof was leaking in 4 places. Strategy Builders refuses to take responsibility and repair the roof”

Investigator’s Observation from initial inspection: Verified. The complainant pointed out and showed me the four leak locations. I observed improper flashing with open voids along the rake wall, above the back entry on the north and south sides.

Additionally, the flashing for the roof ducting located above the master bathroom has been poorly sealed and a tear in the roofing material was observed.

All areas observed are consistent, in location, to be the cause of the damage observed on the ceilings, in the four locations, in the interior of the residence.

The respondent stated at the time of this inspection that they are able and willing to perform the necessary corrections for the complainant.

Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been done, however; the current conditions do not meet ROC Workmanship Standards.

The respondent failed to correct, or their corrective work failed, on the drywall ceiling in guest bathroom.

The respondent, after performing the corrective work, left the HVAC supply register in the master bathroom non-operable in the closed position.

On January 17, 2023, 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 January 31, 2023, Respondent timely filed Answer with the Registrar.

On or about February 15, 2023, a Notice of Hearing was issued setting a hearing on March 24, 2023 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Johndrow testified that Respondent’s representative Abraham Diaz initially failed to appear at the Jobsite Inspection. However, Mr. Diaz appeared and Investigator Johndrow continued his inspection.

Further, Investigator Johndrow testified that Mr. Diaz acknowledged the poor workmanship on the roof and was willing to address the leaks.

Investigator Johndrow also testified that the Directive was due on November 25, 2022, and Complainant informed him on November 28, 2022, that the repairs were incomplete. At a compliance inspection on December 2, 2022, Mr. Diaz stated that he was unaware that the interior needed to be address, so Complainant allowed for more time to complete the project.

Finally, Investigator Johndrow testified that at the inspection on January 5, 2023, he observed that the interior had been completed but for the hall bathroom’s HVAC supply register which was inoperable.

Complainant testified on her own behalf and offered 19 exhibits into evidence.

Complainant testified that she closed on her house on July 13, 2022, and by August the roof was leaking. Complainant testified that at closing, she was given a copy of a warranty from Respondent signed by Joshua Robles. Based upon this warranty, Complainant contacted Respondent to make repairs.

In addition, Complainant testified that she did not contract with Respondent or Mr. Robles as the roof was completed prior to the purchase of her home, and thus had no knowledge of the parties to the contract or its terms.

Complainant testified further that initially Respondent was not responsive to her called, however Respondent finally reached out once Complainant made complaints with the Better Business Bureau. On September 21, 2022, Complainant received an e-mail from Mr. Diaz stating he was willing to repair the roof, and Mr. Robles would pay for the work, but realized the job was too much to assume responsibility, therefore he declined to do the repair.

Complainant testified that Mr. Diaz agreed to perform the work at the jobsite inspection on November 4, 2022, however the work was not timely completed and Complainant granted additional time for Respondent to make the repairs.

Further, Complainant testified that Mr. Diaz agreed to provide a warranty for the corrective work performed, but still had not provided the same.

Respondent offered the testimony of Abraham Diaz and Joshua Robles, and offered ten exhibits into evidence.

Mr. Diaz testified that he was the owner of Strategy Builders and that he had not performed work on the roof until directed to do so by the Registrar on November 4, 2022.

Further, Mr. Diaz testified that Joshua Robles was an employee of his from 2017 through June 2020. Mr. Diaz testified that Mr. Robles was not affiliated with Respondent at the time the warranty was given in 2021. Further, the warranty/contract was not even the correct form he uses.

Mr. Diaz also testified that he was not trying to ignore Complainant, but rather he informed them he would look into the matter as he knew he did not work on the roof. Mr. Diaz testified that on at least two occasions something similar happened with Mr. Robles, but he was able to resolve the matter with the homeowners, as he performed the work and Mr. Robles paid him back. Based upon this, Mr. Diaz filed a Complaint with the Registrar against Mr. Robles.

As to the HVAC vents, Mr. Diaz testified that he was not aware if they were operable, but that the vents were initially installed improperly, as they were installed after the roof was added.

Joshua Robles testified that he created the warranty document on November 2, 2021, and that this was a mistake as he used the wrong form. Mr. Robles testified further that at the time of the work, he was no longer employed with Respondent and had no authority to enter into a contract on its behalf.

Mr. Robles testified too that the original contract was between his business and the real estate agents selling the home. Mr. Robles testified further that he license had been revoked for about a year.

Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 318439 was first issued on February 23, 2018, and reflected that there was one open complaint, namely the present complaint and two resolved or settled cases.

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 there was a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), by Respondent as once Mr. Diaz agreed to undertake the corrective work and did the work, he was bound to perform all work in a professional and workmanlike manner. Specifically, the drywall ceiling in the guest bathroom failed, and the HVAC supply register in the master bathroom was inoperable.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Again, while some work had been corrected, the preponderance of the evidence demonstrated that Respondent failed to fully complete the HVAC supply register, and also failed to provide a written warranty for the work in performed as Mr. Diaz said he would at the initial jobsite inspection. 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. 318439 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $200.00 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.

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 4, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Kira O'Neal

2901 E Copper St

Tucson, AZ 85716

[email redacted]

Patrick J. Lopez

Mesch, Clark & Rothschild, P.C.

259 N. Meyer Ave.

Tucson, 85701

[email redacted]

By: OAH Staff