ALJDEC - Licensing
2022A-08855-CHC-ROC · Registrar of Contractors · 2023-04-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Laura Sanchez ,
COMPLAINANT
v.
Sampson Empire LLC
DBA: Sampson Roofing
License No. ROC 334646,
RESPONDENT
No. 2022A-08855-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 29, 2023, 9:00 A.M.
APPEARANCES: Complainant Laura Sanchez appeared on her own behalf; Sampson Macias, President and Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Sampson Empire, LLC, DBA Sampson Roofing (Respondent), is the holder of License Number 334646 issued by the Registrar of Contractors (Registrar).
2. On or about September 29, 2022, Laura Sanchez (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with roofing work by Respondent at a residence in Phoenix, Arizona (“project”). The Complaint reflected a contract amount of $12,453.88.
3. The Registrar performed an inspection of the project on November 3, 2022. Thereafter, the Registrar issued a Directive, dated November 15, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 12, 2022 (Directive expiration date”), as follows:
Compliance Item 2: On 9/9/22 rains, and the living room start to leak water from the hard ceiling, 9/10/22 the contractor sent his employee to fix the leak apparently with caulking. Same day (9/10/22) the hard ceiling collapsed close to new born child. The contractor sent his employee but nothing was done since, the contractor left the project leaving the living room leaking water and without protection. Investigator’s Observation: Verified. The respondent is to correct the areas with ponding, screws protruding thru the roof exterior surface and the damaged caused to the interior by appropriate means. Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
4. When the Registrar was informed by Complainant that no corrective work was scheduled or performed prior to the Directive expiration date, the Registrar then issued a Citation to Respondent, dated December 13, 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 for failure to perform work in a professional and workmanlike manner);
b. A.R.S. §32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
c. A.R.S. §32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar set a hearing after continuances for March 29, 2023, at 9:00 A.M.
6. At the March 29, 2023, hearing, Complainant Laura Sanchez testified on her own behalf and presented the testimony of Perla Sanchez; Sampson Macias testified on behalf of Respondent. David Fagerburg, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A - F and Respondent’s exhibit numbers 1 - 3.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that he could only confirm that one item, Compliance Item No. 2, needed to be corrected. He stated that at the inspection, he saw a room with new drywall but without tape, mud, or texture. Respondent acknowledged that drywall had collapsed due to leaks but had been corrected. He stated that Respondent informed him it had attempted to do repairs on November 4, 2022, the day after the inspection, but was turned away. He stated he was told by Respondent that Respondent attempted on the Directive expiration date, December 12, 2022, to schedule repairs, but that he considered this too late for Respondent to take corrective action. He stated Respondent claimed that it did not receive the Directive and that Complainant would not allow access in any event, so he asked for documentation from Respondent showing attempts to gain access but that Respondent provided no such documentation.
8. Perla Sanchez testified, as herein relevant to the Citation, that she is the sister of Complainant and lives at the subject residence. She stated that Respondent’s workers came out on November 4, 2023, and indicated they were there to remove screws and plug them with silicone. When she told them that that was not the instructions they were given, they replied that that was their direction from Respondent. She stated she was never told that this was only a temporary measure. She indicated she asked the workers to leave and that Respondent never came back to the project after that date.
9. Complainant Laura Sanchez testified, as herein relevant to the Citation, that she agreed with Perla Sanchez’s testimony and that she had to get someone else to finish the project. She indicated she was not present on November 4, 2022, the day after the inspection, the last time workers had been sent out by Respondent.
10. Sampson Macias testified on behalf of Respondent, as herein relevant to the Citation, that he was not present when his subcontractor was asked to leave the property on November 4, 2022, and prevented from removing the screws or doing corrective work. He stated the subcontractor’s direction to remove the screws and seal the holes with a wood caulking was a temporary waterproofing measure due to impending rain. He further stated a more permanent corrective measure such as replacing plywood would be done after. He testified further that while he received inspection notes by email, he did not receive the Directive even though it was sent to the same email.
11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on August 31, 2021, was renewed through August 31, 2023, and has no previous disciplinary actions.
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. To warrant such 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).
4. 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, any of the following:
3. Violation of any rule adopted by the registrar. ...
12. Failure in any material respect to comply with this chapter.
...
22. Failure to take appropriate corrective action to comply with this 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. The written directive shall set forth the time within which the contractor is to complete the remedial action....
5. 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 rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(b) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to demonstrate that Respondent has failed to comply with A.R.S. § 32-1154(A)(3) due to the failure to perform work in a professional and workmanlike manner. The parties testified to a lot that transpired outside of the matter raised in the Directive regarding this insurance roof repair. However, with regard to the narrow issue in this case, Respondent presented no evidence to dispute the existence of the Directive item that was required to be corrected. It instead claimed that it had not been granted access to correct the item.
8. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent has failed in a material respect to comply with A.R.S. § 32-1158(A). However, in that Respondent indicated it presented a new form contract to the Registrar before this hearing and to this Tribunal after the hearing that was in compliance with A.R.S. § 32-1158(A), the Tribunal finds that discipline for a violation of A.R.S. § 32-1154(A)(12) would not be warranted.
9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). While there is no dispute that Respondent was asked by Perla Sanchez not to do corrective work and to leave the property on November 4, 2022, the day after inspection and before the Directive was issued, it is also undisputed that Respondent never returned to the property and only made a last-minute attempt on December 12, 2022, to schedule repairs. Respondent presented testimony that the corrective work regarding removal of the screws that it was prevented from doing was only a temporary repair measure due to impending inclement weather. However, no evidence was presented to show that Complainant was informed it was temporary or why Respondent did not later attempt to perform the permanent repairs. Further, at the hearing, Respondent did not present evidence that it attempted to address the other corrective measures required in the Directive, namely, correction of the ponding areas and the damage caused to the interior. The Tribunal does not consider Complainant’s direction to Respondent’s subcontractor to leave the subject property on one occasion prior to the Directive being issued to be valid justification for Respondent not making further efforts during the Directive period to correct the work.
10. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Sampson Empire, LLC, DBA Sampson Roofing, License Number 334646 is suspended for two (2) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 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, April 18, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Respondent(s)
Sampson Empire LLC, Respondent
dba Sampson Roofing
3010 N. 67th Pl. Ste. 106
Scottsdale, AZ 85251
[email redacted]
Complainant(s)
Laura Sanchez
7232 W College Dr
Phoenix, AZ 85033
[email redacted]
By: OAH Staff