ALJDEC - Licensing
2023A-06212-CHC-ROC · Registrar of Contractors · 2023-12-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robert Cooperider,
COMPLAINANT,
v.
Cal-Pro Roofing LLC
ROC License No. 306666,
RESPONDENT.
No. 2023A-06212-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 28, 2023 at 1:00 PM.
APPEARANCES: Robert Cooperider (“Complainant”) appeared on his own behalf. Abraham Martinez appeared on behalf of Cal-Pro Roofing LLC (“Respondent”). Lisa Melton appeared on behalf of the Arizona Registrar of Contractors (Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, 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
Background and 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 July 29, 2016, the Registrar issued License No. 306666 for Specialty Dual CR-42 Roofing contracting to Respondent. The license is renewed through July 31, 2024. Jorge Urcino Jr. is listed as the Qualifying Party and Member on the license. Respondent’s address of record for the license is 14021 N. 51st Ave., Ste. 118 Glendale, AZ 85306. Respondent has an active $28,250.00 surety bond on the license issued by RLI Insurance Company. The license has been disciplined on 1 prior occasion, and has had prior 1 complaint settled or otherwise resolved against it. Currently, there are 2 open complaints against the license; 1 of which is presumed to be related to the case at bar.
On or about May 30, 2023, the Registrar received a 14-item complaint from Complainant against Respondent’s License No. 306666 alleging poor work of roofing project. The Registrar designated it Complaint No. 2023-06212 and assigned it to Lisa Melton (“Investigator Melton”) for investigation.
On June 29, 2023, Investigator Melton issued a Jobsite Inspection Notification Letter to the parties, advising that she would conduct an inspection of the project on August 10, 2023, at 9:00 a.m. Correspondence was not returned as undeliverable to Respondent.
On August 10, 2023, Investigator Melton inspected the work that had been performed on the project to date. Respondent was present. Investigator Melton also reviewed the contract-related correspondence between the parties, and took 10 photographs of the project site. When she was finished, Investigator Melton drafted her Inspection Notes. Investigator Melton determined that Complaint No. 2023-06212 contained 12 separate and distinct complaint items, 5 of which she was able to substantiate based on her firsthand observations. Specifically, Investigator Melton determined that complaint items 5, 7-9, and 11 required remediation by Respondent and the procurement of a building permit from the local building authority.
On August 25, 2023, Investigator Melton issued a Written Directive from the Registrar (“Directive”) to Respondent due to her substantiation of Complainant’s complaint allegation(s) against it. Respondent was put on notice that it had until 5:00 p.m. on September 13, 2023, to notify the Registrar of its compliance with the Directive (i.e. obtain a building permit and remedy the substantiated workmanship violations by “appropriate means”) or face discipline pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A) and 32-1154(E). Respondent was specifically advised as follows:
Investigator’s Observation: Per City Building Official (CBO) this work “replace plywood requires permit and inspection. Statute requires that contractors perform all work in accordance with applicable building codes. Permit and inspection are part of code. Respondent should comply with CBO requirements for permitting and inspection and provide this Investigator with copies of passed final inspection relative to their scope of work.
(Emphasis in original.)
Correspondence was not returned as undeliverable to Respondent.
On September 19, 2023, Investigator Melton forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On September 21, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until October 06, 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 September 29, 2023, the Registrar received Respondent’s timely Answer whereby Mr. Martinez denied all of the allegations in the Citation on behalf of Respondent.
On October 02, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on November 28, 2023. Per the October 11, 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)(2)(a)
Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 3: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on his own behalf and called Investigator Melton as a witness. Respondent called Abraham Martinez as a witness. The Registrar’s agency file, including the Notice of Hearing, was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns a residential property located at 5102 E. Gelding Dr. Scottsdale, Arizona 85254.
On an unspecified date in February 2023, representatives on behalf of Respondent canvased Complainant’s neighborhood to drum up business. On approach, Complainant was advised that his 20-year old shingles likely required replacement due to their age and state of deterioration. Complainant granted Respondent access to the roof for further inspection. Results were provided to Complainant’s homeowner’s insurance company, Acuity Insurance (“Acuity”), who in turn sent its own inspector to inspect the state of Complainant’s roof. Ultimately, Acuity agreed to cover the cost of repairs to Complainant’s roof, less his $1,000.00 deductible.
As a result, the parties entered into a $13,712.04 roof repair agreement.
A total of 2 Change Orders were executed on the project, which increased the cost to $16,312.04 overall.
Acuity issued payment(s) to Complainant, who in turn paid Respondent directly.
Complainant paid for the project in full.
Work on the project took place between February and March 2023.
Respondent received the Registrar’s Jobsite Inspection Notification Letter and Directive.
Between August 25, 2023 and September 13, 2023, Respondent did not apply for a building permit from the local building authority or attempt to perform any corrective work on substantiated complaint items 5, 7-9, and/or 11. Respondent did not ask the Registrar for an extension of the Directive’s compliance period.
The parties never settled their dispute.
Closing Arguments
Both parties declined to provide closing arguments.
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 for the Registrar 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)(2)(a) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture or disregard of plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”
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(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
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) holds, 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 holds that no 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.
The record clearly reflects that the parties had a contract for the repair of Complainant’s roof, and that Complainant paid Respondent in full. It is also clear that a building permit was required for the underlying project, and that Respondent failed to obtain one prior to commencing work on the project. It is further clear that some of Respondent’s work on the project fell below the Registrar’s minimum standards, and that Respondent made no attempt to comply with the Registrar’s Directive, or seek an extension thereof.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing enter into a financial settlement agreement with Complainant, obtain a building permit, and/or timely perform corrective work in compliance with the Registrar’s Directive. These are affirmative defenses that Respondent bears the burden to establish. The Tribunal is not at liberty to make presumptions in favor of Respondent or accept facts in mitigation on behalf of Respondent that are not supported by the evidence. Here, however, a detailed analysis is not necessary. Mr. Martinez did not offer any justifications or excuses for Respondent’s lack of post-Directive performance. Thus, Respondent has not sustained its burden of persuasion in this matter.
Because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3), and 32-1154(A)(22), 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 this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Cal-Pro Roofing LLC, ROC License No. 306666, be suspended six (6) days.
IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $500.00 (five 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, December 01, 2023.
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, Complainant
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Cal-Pro Roofing LLC, Respondent
14021 N. 51st Ave., Ste. 118
Glendale, AZ 85306
[email redacted]
[email redacted]
Robert Cooperider, Complainant
5102 E. Gelding Dr.
Scottsdale, AZ 85254
[email redacted]
By: OAH Staff