ALJDEC - Licensing

2023A-01519-CHC-ROC · Registrar of Contractors · 2023-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roxann Fisher,

COMPLAINANT

v.

America’s Best Roofing Company, LLC

License No. ROC 322113,

RESPONDENT

No. 2023A-01519-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 8, 2023

APPEARANCES: Complainant Roxann Fisher appeared on her own behalf. Sergio Jimenez, Owner, appeared on behalf of Respondent America’s Best Roofing Company, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

America’s Best Roofing Company, LLC (Respondent) is the holder of License No. 322113 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 14, 2021, Roxann Fisher (Complainant) entered into a contract with Respondent for, among other things, the installation of Gaco deck coating on her patio deck.

On or about February 7, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow 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 March 10, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Improper Deck Preparation, Improper and Incomplete Product Installation. Previous deck membrane is Silicone...GACO Elastomeric Coating will not adhere to Silicone...Deck is bubbled, cracked and peeling.”

Investigator’s Observations: Verified. The deck coating is failing. There are signs of degradation and poor adhesion noted throughout the deck coating surface. The complainant pointed out areas of the coating that are cracking and bubbling. The complainant demonstrated how the coating easily peels away from the surface below.

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.

Following the issuance of the written directive, Respondent attempted to perform some corrective work on the project.

After the deadline in the directive expired, Investigator Johndrow received a telephone call from Respondent requesting an extension of the deadline. Investigator Johndrow contacted Complainant to determine if she would consent to an extension, but she was unwilling to let Respondent perform additional work on the project.

On or about March 22, 2023, Investigator Johndrow conducted a compliance jobsite inspection during which we observed that some corrective work had been done, but the condition of the deck did not meet the Registrar’s workmanship standards.

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 Johndrow testified as to his observations of the project.

Complainant testified as to the issues she observed on the project and how the product was installed erroneously.

Mr. Jimenez testified that he was not familiar with the product Complainant requested be used for her project. Mr. Jimenez admitted that he failed to properly install the product, but asserted he attempted to do the best he could under the circumstances.

Administrative notice is taken of Respondent’s prior License record on September 27, 2023. Such prior License record reflects that Respondent’s License No. 322113 was first issued on September 20, 2018, and is active. Such prior License record also reflects that there were no other open complaints, two prior complaints resulting in discipline, and two prior resolved/settled 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 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. 322113 for a period of three days.

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, September 28, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Cindy Casaus, Interim Director

Registrar of Contractors

America’s Best Roofing Company, LLC

[email redacted]

Roxann Fisher

[email redacted]

Gregory Johndrow

[email redacted]

By: OAH Staff