ALJDEC - Licensing

2023A-06316-CHC-ROC · Registrar of Contractors · 2023-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cecilia Ingram,

COMPLAINANT

v.

Danny Patrick Carroll

License No. ROC 317314,

RESPONDENT

No. 2023A-06316-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2023

APPEARANCES: Complainant Cecilia Ingram appeared on her own behalf. Respondent Danny Patrick Carroll failed to appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Hearing Packet submitted by the Arizona Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Danny Patrick Carroll (Respondent) is the holder of License No. 317314 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 28, 2022, Cecilia Ingram (Complainant) entered into a contract with Respondent for a roof repair. The contract failed to include the estimated date of completion or an advisement that Complainant had the right to file a complaint with the Registrar.

On or about June 5, 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 David Fagerburg. After a jobsite inspection, Investigator Fagerburg 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 Monday August 7, 2023.

. . . .

Investigator Notes:

1: In reviewing the 4 written contracts submitted I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating Workmanship Rule: ARS §32-1158 (A) Minimum elements of a contract specifically #4 and #9.

2: Submitted with the complaint form were copies of 4 individual signed contracts with a different scope of work. The contract dated 2-28-2022 provides 2 options as a scope of work. Option A repairs to roof is noted and option B is crossed out.

3: The complainant informed me that the complaint filed is based on a 3rd party inspection report as the complainant is unable to access the roof of the home.

4: The roof of the home consists of both foam flat roof and tile and access to the tile roof areas was limited.

5: During this jobsite investigation the complainant clarified that the respondent was last on the jobsite in September 2022.

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: Work was not finished. Tile from slopes needs to be set aside in areas of repair.;

Investigator’s Observation: Verified. The respondent shall complete the project per the signed written contracts submitted by appropriate means. . . .

Compliant Item 4: Polyglass TU Plus peel and stick underlayment was not installed in areas of repair.;

Investigator’s Observation: Verified. I am able to verify the new underlayment is to be Rhino Boron underlayment which is considered a self-adhering. The underlayment observed appears to be granular with fasteners installed. The respondent shall complete the project per the signed written contracts submitted by appropriate means. . . .

Compliant Item 7: New flashings at side and head walls were not installed.;

Investigator’s Observation: Verified. The respondent shall complete the project per the signed written contracts submitted by appropriate means. . . .

Compliant Item 9: Tile not installed to specifications.

Investigator’s Observation: Verified. The respondent shall complete the project per the signed written contracts submitted by appropriate means. . . .

Compliant Item 10: Many broken tiles were not replaced.;

Investigator’s Observation: Verified. The respondent shall complete the project per the signed written contracts submitted by appropriate means. . . .

Compliant Item 11: Area was not cleaned of roofing debris.;

Investigator’s Observation: Verified. The respondent shall complete the project per the signed written contracts submitted by appropriate means. . . .

Compliant Item 12: Mortar caps not replaced.

Investigator’s Observation: Verified. The respondent shall complete the project per the signed written contracts submitted by appropriate means.

Following the issuance of the written directive, Respondent made no attempt to perform the corrective work. After the deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed.

Investigator Fagerburg tried to contact Respondent on July 19, 2023, and had to leave a message.

The same day, Respondent returned Investigator Fagerburg’s call and said he wanted to work things out with Complainant. Investigator Fagerburg informed Respondent that the deadline in the written directive had expired and Complainant no longer had to allow Respondent on the property.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on December 12, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A September 14, 2023 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on December 12, 2023.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Fagerburg testified that he did not perform a prehearing jobsite inspection because Complainant had hired someone else to repair the project and the work had been completed.

Complainant testified that Respondent did not contact her at any time after the written directive was issued and before the deadline expired.

Administrative notice is taken of Respondent’s prior License record on December 12, 2023. Such prior License record reflects that Respondent’s License No. 317314 was first issued on December 21, 2017, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to 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. 317314 for a period of three days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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, December 14, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Cecilia Ingram

[email redacted]

David Fagerburg

[email redacted]

Danny Patrick Carroll

DBA: Weather Guard Improvements

[email redacted]

By: OAH Staff