ALJDEC - Licensing
2023A-00056-CHC-ROC · Registrar of Contractors · 2024-01-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Iftequar Siddiqui,
COMPLAINANT,
v.
BMR Roofing LLC
ROC License No. 315752,
RESPONDENT.
No. 2023A-00056-CHC-ROC
No. 2023A-03912-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 12, 2023 & December 20-21, 2023.
APPEARANCES: David Ruiz, Esq. appeared on behalf of Iftequar Siddiqui (“Complainant”) with Steven Klingler as a witness. Corey Larson, Esq. appeared on behalf of BMR Roofing LLC (“Respondent”) with Shemielee Aguilar Sinclair as a witness. Mike Springer appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The 2023A-00056-CHC-ROC Notice of Hearing and 2023A-03912-CHC-ROC Notice of Hearing; including the attached Registrar agency files, were admitted into the evidentiary record along with Complainant Exhibits D, I-N, P, S, W, and Respondent Exhibits A-D & F-G. All Minute Entry – Granting Continuances in both matter were admitted for administrative purposes.
_____________________________________________________________________
After review of the hearing record in these matters, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Procedure
Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On September 28, 2017, the Registrar issued License No. 315752 Specialty Dual CR-42 Roofing contracting license to Respondent. The license has been renewed through September 30, 2025. Shemielee Gennifer Aguilar Sinclair is listed as the Qualifying Party and Member on the license. Respondent’s address of record for the license is 7739 E. Broadway Blvd. #253 Tucson, AZ 85710. The license does not have a disciplinary history. There are currently two (2) open complaints against the license; one of which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond on the license issued by RLI Insurance Company, effective September 07, 2017.
Complaint No. 2023-00056
On December 20, 2022, the Registrar received a 24-page narrative complaint from Complainant against Respondent’s License No. 315752, totaling 7 complaint items, which included attachments marked as Exhibits 1-4, alleging abandonment of a residential roofing project. The Registrar designated it Complaint No. 2023-00056 and assigned to Arlo Houston (“Investigator Houston”) for investigation.
On or about January 13, 2023, the Registrar received a 13-item addendum complaint for Complaint No. 2023-00056 from Complainant.
On January 18, 2023, Investigator Houston issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on February 02, 2023, at 10:00 a.m.
On January 19, 2023, Investigator Houston issued a Notice of Rescheduled Jobsite Inspection Notification Letter to the parties, advising that he would conduct the onsite inspection of the project on February 06, 2023, at 1:00 p.m.
On an unknown date, Investigator Houston issued a Notice of Rescheduled Jobsite/Addendum Jobsite Inspection Letter to the parties, advising that he would conduct the onsite inspection of the project on February 22, 2023, at 1:00 p.m.
On February 15, 2023, Investigator Houston issued a Notice of Rescheduled Jobsite/Addendum Jobsite Inspection Letter to the parties, advising that he would conduct the onsite inspection of the project on February 27, 2023, at 1:00 p.m.
On February 06, 2023, Investigator Houston inspected the work that had been performed on the project to date. Respondent was present. Investigator Houston also reviewed contract-related correspondence, and took 13 photographs of the project site. When he was finished, Investigator Houston drafted his Inspection Notes. Ultimately, Investigator Houston derived a total of 20 separate and distinct complaint items from Complaint No. 2023-00056, 1 of which he was able to substantiate based on his firsthand observations. Specifically, Investigator Houston determined the following:
Upon inspection at the JSI and/or addendum JSI the complainant said that tiles had not been fastened/nailed and showed me two different tiles that had not been fastened/nailed. [sic]
Overall, Investigator Houston held that Respondent’s workmanship on complaint item 7 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On March 03, 2023, Investigator Houston issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated one of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on March 21, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A) and 32-1154(E).
Investigator Houston also included the following advisement regarding the remediation of complaint item 7:
DIRECTIVE REQUIREMENTS:
You are directed to remedy the following violations by appropriate means:
(Emphasis in original.)
Correspondence was not returned as undeliverable to Respondent.
On March 22, 2023, Investigator Houston forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On March 24, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until April 08, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On April 06, 2023, the Registrar received Respondent’s timely Answer whereby Ms. Aguilar Sinclair argued that the alleged damaged/loose roofing tiles had been caused by another unnamed company, and that an inspection on March 01, 2022, noted that the tiles had been found in an “acceptable condition.” Per Ms. Aguilar Sinclair, during the purchase of the underlying property at issue, Complainant had accepted a credit for the roof in lieu of repairs per the BINSR. Ms. Aguilar Sinclair further alleged that Complainant had declined to perform a water test at the Registrar’s jobsite inspection.
On April 10, 2023, the Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 06, 2023. Per the May 02, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Complaint No. 2023-03912
On April 03, 2023, the Registrar received a 7-item narrative complaint from Complainant against Respondent’s License No. 315752 alleging poor work of a residential roofing project. The Registrar designated it Complaint No. 2023-03912 and assigned to Investigator Houston for investigation.
On April 07, 2023, Investigator Houston issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on May 03, 2023, at 9:00 a.m.
On April 24, 2023, Investigator Houston issued a Notice of Rescheduled Jobsite Inspection Letter to the parties, advising that he would conduct the onsite inspection of the project on May 15, 2023, at 1:00 p.m.
On May 15, 2023, Investigator Houston inspected the project site. Respondent was present. Investigator Houston reviewed additional contract-related correspondence, and took 19 photographs of the project site. When he was finished, Investigator Houston drafted his Inspection Notes. Ultimately, Investigator Houston was able to substantiate one of Complainant’s complaint items based on his firsthand observations. Specifically, Investigator Houston held that Respondent’s workmanship on complaint item 7 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On May 23, 2023, Investigator Houston issued a Directive to Respondent because he substantiated one of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on June 19, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E).
Investigator Houston also included the following advisement regarding the remediation of complaint item 7:
DIRECTIVE REQUIREMENTS:
You are directed to remedy the following violations by appropriate means:
(Emphasis in original.)
Correspondence was not returned as undeliverable to Respondent.
On June 07, 2023, Investigator Houston issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on June 26, 2023, at 2:00 p.m.
On June 13, 2023, the Registrar received a 2-item addendum complaint for Complaint No. 2023-03912 from Complainant.
On an unknown date, Investigator Houston issued an Addendum Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on June 26, 2023, at 2:15 p.m.
On June 26, 2023, based on his firsthand observations, Investigator Houston determined that Respondent had satisfactorily remediated substantiated complaint item 7 for Complaint No. 2023-03912. Respondent was present.
On June 26, 2023, Investigator Houston performed an addendum jobsite inspection. Respondent was present. Investigator Houston took 4 photographs of the project site. When he was finished, Investigator Houston drafted his Addendum Jobsite Inspection Notes. Specifically, Investigator Houston determined the following:
At the addendum jobsite inspection I observed for an area of tiles on the West side of the roofing system where the vertical lines of the tiles, from the ridge down to the eave, are not reasonably straight. [sic]
Overall, Investigator Houston held that Respondent’s workmanship on complaint item 9 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On June 28, 2023, Investigator Houston issued an Amended Directive to Respondent because he substantiated one of Complainant’s addendum complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on July 18, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E).
Investigator Houston also included the following advisement regarding the remediation of complaint item 9:
DIRECTIVE REQUIREMENTS:
You are directed to remedy the following violations by appropriate means:
(Emphasis in original.)
Correspondence was not returned as undeliverable to Respondent.
On July 18, 2023, the Registrar received a 1-item addendum complaint for Complaint No. 2023-03912 from Complainant. As a result, Investigator Houston conducted an addendum jobsite inspection that same date. Respondent was present. Based on his firsthand observations, complaint item 10 was not substantiated by Investigator Houston.
On July 20, 2023, Investigator Houston forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On July 25, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until August 09, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.
On August 09, 2023, the Registrar received a timely Answer on behalf of Respondent whereby Respondent raised a Denial of Access affirmative defense against Complainant’s allegation, and further argued that it had been denied an extension of the Registrar’s Amended Directive by Investigator Houston.
On August 11, 2023, the Registrar referred the matter to OAH for an evidentiary hearing on September 27, 2023. Per the August 22, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Background
On or about September 07, 2023, after multiple continuances had been issued in OAH Docket Nos. 2023A-00056-CHC-ROC and 2023A-03912-CHC-ROC, the above-captioned hearings were consolidated for hearing per the parties’ request.
Hearing Evidence
Complainant testified on his own behalf and called Steve Klingler and Registrar investigator Mike Springer (“Investigator Springer”) as witnesses. Ms. Aguilar Sinclair testified on behalf of Respondent. The credible and substantive evidence of record is as follows:
In August 2021, Rick Snow (“Seller”) owned residential property located at 7460 E. Knollwood Dr. Tucson, Arizona 85750 (“Property”). At that time, Seller entered into a $35,000.00 contract with Respondent for the replacement of the roof underlayment at the Property. The project came with a 10 year guarantee against leaks.
The International Residential Code (“IRC”) is the jurisdictional regulatory authority over the Property.
Respondent reused existing tiles, and replaced them using the same or similar wet-set method as the original roofer. Ms. Aguilar Sinclair relied on her 2017 licensing studies and related materials on the project, but did not confirm her chosen method with the city or county building authorities or Registrar.
On February 22, 2022, Complainant entered into a residential property purchase agreement with Seller to purchase the Property. On or about April 13, 2022, escrow closed on the Property whereby Complainant accepted a $10,000.00 credit in lieu of repairs from Seller.
In August 2022, the Property’s roof began to leak during seasonal rainfall. On or about August 29, 2022, Complainant reported the leak(s) to Respondent.
On September 07, 2022, Respondent was called to the Property to inspect the alleged leak(s). At that time the roof itself was not inspected. Instead, Respondent focused its inspection on the interior of the residence.
A subsequent roof inspection was scheduled by Respondent for September 15, 2022, but was cancelled prior to the appointment.
Shortly thereafter Complainant filed a homeowner’s insurance claim, 01-005-770072, which resulted in an inspection by the insurer (“Progressive”) on October 11, 2022. The resulting insurance adjustment report noted the following, in pertinent parts:
[I]t was confirmed that there was no apparent storm damage to the roof. However, upon inspection, it was noticed that there was not proper installation of roof pipe jacks and vents. There was mortar packed to seal these projections which not to manufacture specifications. [sic] The multi-piece wet set clay tile roof system should have proper flashing instlled [sic] without mortar. There were multiple broken tiles on the west facing slope, source of the leaks, that [sic] are allowing water to enter under the tiles and penetrate through 5” nails securing tiles to the deck. With new underlayment this should not be an issue, yet there are multiple leaks thoughout [sic] home. Broken tiles are not a result of foot traffic, but likely install issues. Foot traffic would smash the tiles in mult [sic] pieces, not crack in the manner which these tiles have. These cracked tiles have horzontal [sic] cracks which usually result from installation and lifting of setting mortar to secure tiles. Underlayment at the eaves appeared to be a peel and stick membrane, granular, that does not appear to be newly installed. These issued should be under warranty for workmanship issued by the roofing company which installed this roofing system.
(All errors in original.)
In Complainant’s December 2022 filing for Complaint No. 2023-00056, he noted that he had incurred thousands of dollars in expenses attempting to remediate water damage from the leak(s) in the roof.
Regarding Complaint No. 2023-00056, Respondent did not perform any corrective work on substantiated complaint item #7 between March 03, 2023, and March 21, 2023, nor did Respondent allege a denial of access to the Registrar during this period of time.
Regarding Complaint No. 2023-03912, Respondent did not perform any corrective work on substantiated addendum complaint item #9 between May 23, 2023, and June 19, 2023, and/or to June 28, 2023, through July 18, 2023.
On or about July 11, 2023, Respondent asked Complainant to extend the compliance deadline for the June 28, 2023, Amended Directive. On July 12, 2023, Counsel for Complainant replied as follows, in pertinent part:
I understand that [Respondent] is attempting to contact [Complainant] in order to arrange a visit to the home regarding the crooked roof tiles. [Complainant] is unable to accommodate any repair visits to the home at this time. [Complainant] also is aware that in its June 28, 2023 Amended Written Directive, the Registrar ordered [Respondent] to remedy the violation by July 18, 2023. For that reason [Complainant] will agree to extend [Respondent’s] compliance deadline. Please give me a call so we can discuss what that new compliance deadline should be and notify the Registrar of Contractors.
(Emphasis added.)
On July 18, 2023, Respondent allege a Denial of Access in Complaint No. 2023-03912 to the Registrar for the first time.
Exterior remediation(s) to Complainant’s roof did not necessitate Complainant’s presence at the project site, however, any interior work would require Complainant to grant access and/or be present.
Additional Evidence
On March 01, 2022, the Property was inspected by Mark Ashby (“Inspector Ashby”) of Home Sweet Home Inspections. Inspector Ashby’s subsequent report noted the following regarding the roof:
The tile roof is in acceptable condition, but this is not a guarantee against leaks. For a guarantee, you would need to have a roofing company perform a water-test and issue a roof certification.
There are no gutters on the patio cover, which are recommended for the general welfare of the residence and its foundation, inasmuch as moisture is a perennial problem.
On February 21, 2023, Progressive issued the following Denial Letter regarding Claim No. 01-005-770072 to Complainant, in pertinent parts:
The inspection revealed damage to your roof due to improper installation of the dwelling roof. The adjuster found the vents on right slope are older and do not appear that they were replaced with the roof. Poor installation of the underlayment around the flashings. The step flashing on the front elevation has heavy caulking in this area that was done when the roof was replaced. Unfortunately, this type of damage is specifically excluded from coverage under the terms of your policy. Therefore, we must respectfully decline payment for this portion of your claim.
On March 11, 2023, Complainant’s roof was again inspected by Inspector Ashby. In his subsequent report, Inspector Ashby noted the following, in pertinent parts:
Tiles are not secured without nailing on most of the roofing and mortar is being used to secure tiles. This method of installing tiles is in adequate to today's standards.
Nailing from roofing tiles are penetrating thru the eves noted on all four sides of the structure.
The roof flashing's need to be sealed or serviced due to active leaks noted within structure. They are comprised of metal that seals valleys and vents and other roof penetrations, and are the most common point of leaks. This is particularly true of the flashings on a layered roof, which are covered by the roofing material and which are even more susceptible to leaks.
The valley flashing's are blocked with mortar to prevent proper drainage noted on East and West sides of structure.
There is flashing but no counter flashing where a portion of the roof abutts [sic] the house, and moisture intrusion would be possible.
The East and West chimneys are wider than thirty inches and they [do] not have a cricket, or raised metal component, to divert water around it, which is typically mandated. [sic]
On August 08, 2023, The Klingler Group, LLC (“TKG”) completed a visual inspection of Complainant’s roof. Per TKG’s firsthand observations, in conjunction with reviews of other inspection reports and manufacturer’s specifications, the following deficiencies were identified, in pertinent parts:
The roof consists of fifteen separate roof slopes with a 5:12 slope surfaced with two-piece tapered clay mission tiles. [TKG’s] visual inspection of [Complainant’s] roof consisted of examining the roof from a ladder and through vantage points were the roof could be viewed.
Blocked or restricted drainage at valley and confined rake pan flashing.
Missing crickets and/or crickets covered over by tile obstructing drainage.
Tiles do not project over eave uniformly and many terminate behind eave closure
Non-compliant tile attachment.
With a roof slope of 5:12 with tiles placed over solid sheathing with no battens, building code and industry standards require every tile to be fastened. (See 2018 IRC –R905.3.6 and Table R905.3.7; M.C.A. Clay Tile Guide Specification for Classic Tapered Mission Clay Tile – Section 07320 and UBC Chapter 15.) Our inspection findings reveal that the tiles are not mechanically fastened and that the mortar attachment is neither sound nor effective. Building code requires each tile to be fastened with one mechanical fastener per tile. To remediate this deficiency, which—if unaddressed—will lead to premature roof failure from wind loss as well as needless future tile displacement, all tiles will need to be removed. After which, the existing underlayment will need to be removed and replaced, followed by re-installation of new clay tiles, as many of these tiles have been removed and reinstalled previously and are no longer suitable for use.
Open rake trim tiles not properly nested – tiles stretched with excessive exposure.
Improperly integrated and under-sized secondary B-vent flashing.
Sloppy and failed mortar application.
Improperly installed use and placement of pan, cover and trim tiles.
Exposed fasteners (shiners) at eaves and rake locations.
Stain evidence consistent with active roof leaks.
Broken and misplaced tile.
(Emphasis in original.)
Specifications note that 2 fasteners are required per tile. Only 1 fastener on slopes of 7 units vertical in 12 units horizontal (58.3% slope) and less for tiles with installed weight exceeding 7.5lbs per square foot, having a width no greater than 16 inches.
Closing Arguments
In closing, Respondent called for the dismissal of both complaints. Respondent opined that both complaints were retaliatory and accused Complainant of filing them after failing to convince Respondent to participate in insurance fraud. Respondent noted that all but two complaint items against it had been unsubstantiated, and argued that substantiated addendum complaint item #9 in Complaint No. 2023-03912 was nullified by Complainant’s alleged denial of access.
In closing, Complainant opined that both matters were essentially matter of “code interpretation” where the IRC governed. Complainant argued that a violation of Ariz. Rev. Stat. § 32-1154(A)(3) existed because Respondent failed to use fasteners on his roof as required by IRC R905.3.7, and also argued that Respondent’s poor workmanship, as noted by Inspector Ashby, was the sole underlying factor in Progressive’s denial of Claim No. 01-005-770072. Complainant further argued that Respondent acquiesced to the allegation of a Ariz. Rev. Stat. § 32-1154(A)(22) violation by acknowledging that corrective work was ever performed in either complaint. Complainant denied prohibiting Respondent from accessing the project site in Complaint No. 2023-03912, and opined that Respondent had chosen not work collaboratively to extend the Amended Directive’s compliance deadline. As such, Complainant beseeched the Tribunal to recommend the suspension of License No. 315752.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”
Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The material facts in the case at bar are clear.
It is clear that Complaint Nos. 2023-00056 and 20023-03912 were both filed within the applicable Statute of Limitations, and that Respondent was responsible for the workmanship at issue in both complaints. The fact that the parties did not have a contract with one another is immaterial.
It is also clear from the record that Respondent’s workmanship on the Property’s roof fell below the Registrar’s minimum workmanship standards, as evidenced by TKG’s report, both of Home Sweet Home Inspections reports, as well as the Directive and Amended Directive issued in both complaints. Regarding Complaint No. 2023-00056, the record reflects that Respondent made no attempts to correct the deficiencies in substantiated complaint item #7 as required by the Registrar’s March 03, 2023, Directive. Regarding Complaint No. 2023-03912, the record reflects that Respondent did not perform any corrections to substantiated complaint item #9 as required by the Registrar’s May 23, 2023, Amended Directive.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and Amended Directive to correct the workmanship deficiencies identified by Investigator Houston. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden. Respondent admitted that it did not address the Registrar’s Directive in Complaint No. 2023-00056, and did not offer an excuse or justification for its inaction. This is a factor in aggravation. In Complaint No. 2023-03912, however, Respondent argued that it had been denied access to the project site by Complainant. The record does not support this contention. The Amended Directive was issued on June 28, 2023. Respondent did not ask Complainant to extend the compliance deadline until July 18, 2023. Notably, Respondent’s request was not denied by Complainant. Instead, Complainant provided Respondent with a notice of unavailability prior to July 18, 2023, and agreed to extend the compliance deadline to a date that was amenable for the parties. Instead of collaborating with Complainant or engaging the Registrar, Respondent accused Complainant of denying access and made no further attempts to correct the work or schedule remediations. Respondent did not formally accuse Complainant of denying access with the Registrar until July 18, 2023. Nothing in the record supports Respondent’s petulant stance or otherwise justifies Respondent’s lack of compliance with the Registrar’s corrective requirement(s). This is also a factor in aggravation.
Because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), in both matters, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
Complainant may petition the Registrar’s Recovery Fund for financial recompense in these matters.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent BMR Roofing LLC, ROC License No. 315752, be suspended seven (7) days.
IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $200.00 (two hundred dollars) in certified funds as a civil penalty.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Order, the Registrar shall 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 Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
NOTICE
Pursuant to Ariz. Rev. Stat. § 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, January 22, 2024.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Corey B. Larson, Esq.
Law Office of Waterfall, Economidis, Caldwell Hanshaw & Villamana, PC, Counsel for Respondent
5210 E. Williams Cir, Ste. 800
Tucson, AZ 85711
[email redacted]
David Ruiz, Esq.
Munger, Chadwick & Denker, PLC, Counsel for Complainant
333 N. Wilmot Rd., Ste. 300
Tucson, AZ 85711
[email redacted]
[email redacted]
By: OAH Staff