ALJDEC - Licensing

2023A-10754-CHC-ROC · Registrar of Contractors · 2024-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nanneene McManis

COMPLAINANT

Beach Ventures Inc

License No. ROC 186811,

RESPONDENT.

No. 2023A-10754-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 18, 2024

APPEARANCES: Nanneene McManis appeared on behalf of herself. Bradley D. Weech, Esq. appeared on behalf of Beach Ventures, Inc. (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits A1 through A9. Respondent’s Exhibits 1 through 5.

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FINDINGS OF FACT

On June 6, 2024, the Arizona Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on July 23, 2024, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. § 32-1154 (A)(3) (specifically, Ariz. Admin. Code section R4-9-108(A), Ariz. Rev. Stat. § 32-1154(A)(16), and Ariz. Rev. Stat. § 32-1154 (22).

3. According to the Registrar’s public website public website, on July 9, 2003, the Registrar issued License No. ROC 186811 for Specialty Dual CR-42 Roofing to Respondent.

4. Respondent’s qualifying party is Zane Beach (Mr. Beach).

5. At all times relevant to this matter, Scott Moran was Respondent’s manager.

6. On or about March 23, 2023, Complainant and Respondent entered into an awning installation contract, for the amount of $28,852.62.

7. Complainant paid Respondent $20,300 pursuant to the contract.

8. On or about July 10, 2023, Respondent began work under the contract.

9. In September of 2023, Respondent stopped work.

10. On or about September 20, 2023, the Registrar received a Complaint from Complainant alleging poor workmanship and abandonment on the part of Respondent.

11. On or about November 2, 2023, Registrar Investigator Steven Avila

conducted a jobsite inspection. Investigator Avila discovered that Respondent performed poor work during the installation of the awnings. See the Registrar’s administrative record, pgs. 94-99.

12. On November 24, 2023, Investigator Steven Avila issued a Directive.

13. The November 24, 2023 Directive provided, in relevant part, 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 December 1, 2023.

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DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Northside awning: The panels installed measure 4- inch- x 1.2 foot in a 2-inch old drain pan, there are only 36 total panels measuring 1.2 foot. These are the wrong size panels for this awning replacement. They appear to be stretched to fit to the 2-inch drain pan causing panels not to interlock, covering up drip edge, nonnormal light exposure and weakness in the pans causing them to split and creating stress points. The large pan cause water to over flow the drain pans and not down the pans to the drain spouts. Correct install; 40 feet x 1 foot awning should take 40 panels To fix the non-interlocking problem, contactor installed tape to the top side of the awning to keep the awning together and not leak. This is a quick fix and withstand AZ sun and weather.

Investigator’s Observation: At the time of the second inspection performed on 11/2/2023 it was verified that the length of the awning replaced on the north side of the residence was 40 feet. Within this forty foot distance there were 36 panels installed spanning the forty foot distance. Prior to the second jobsite inspection the investigator visited Mesa Awning to gather information regarding the installation of the panels. The investigator was informed that the intended span of the panels in question was approximately one foot wide with a 40 foot span requiring 40 panels and a minimum of 39. The employees at Mesa awning stated that the use of less panels could result in deteriorating the structural integrity of the panels. It was confirmed on 11/2 that 36 panels were installed over a forty foot span. The result of the installation appears to have stressed the panels resulting in gaps between the seams. No evidence was gathered at the inspection nor the visit to Mesa Awning to determine that the 2-inch drain pan was not sufficient for the awning. However the respondent shall confirm that if the drain pan was to be replaced per the contractual obligations that said obligations are met. Allegation of improperly installed panels is confirmed. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Southside: The panels installed measure 4-inch- x 1.2 foot wide in a 2-inch old drain pan, there are only 16 total panels measuring 1.2 inch. 20 feet x 1 foot awning should take 20 panels. Panels are cut uneven and jagged. Awnings leak, are dented, scratched, have gaps, empty screw holes minus screws, screws going through the awnings and hole in the center of awning. I witnessed an employee dent an awning and flashing when he was installing it. He was banging on the dent to remove it. It is still dented and has a gap at the connecting sheet.

Investigator’s Observation: At the time of the second jobsite inspection performed on 11/2/2023 it was noted that the distance of the second awning was 20 feet. Within this 20 foot span there were 18 panels installed. Based on the evidence gather from Mesa Awning and noted in line item number 1 there should have been a total of 20 panels installed for the length of awning span. A water test was performed on this side of the residence and there was notable leakage in various areas which included screw holes that remain unfilled and open to the elements. There were also jagged cuts which resulted in uneven edges of panel which also affected drainage in some areas. Any denting caused by hail on either side of the residence is not due to the respondent’s workmanship. Allegation of improper installation of panels is verified. Also holes, irregular cut edges of paneling and water leakage is verified. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

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14. On February 1, 2024, Investigator Avila conducted a compliance job-site inspection. Investigator Avila concluded that the awnings were leaking water and that Respondent had failed to appropriately correct the items listed in the Directive. Investigator Avila’s compliance job-site findings provided, as follows:

No evidence was gathered at the inspection nor the visit to Mesa Awning to determine that the 2-inch drain pan was not sufficient for the awning. However the respondent shall confirm that if the drain pan was to be replaced per the contractual obligations that said obligations are met. Allegation of improperly installed panels is confirmed. Respondent shall correct by the appropriate means.

Compliance Inspection Findings: At the time of the inspection the panels had been reset in to the same rails. This time the panels reached a total number of 37 panels within a 40 foot span. A conversation had with Mesa awning stated that due to the presence of an adjacent awning and preexisting three inch rail this would be an acceptable number of panels. However, a water test being performed showed that there is still water intrusion thru a seam that has failed since the repair on the North side of the residence. The water test also showed that the metal tray on the North side of the residence does not allow for proper drainage due to lack of slope. Respondent had previously replaced the posts on this side of the residence that would have allowed for this drainage. Repairs for the Northside no not meet industry standards.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Investigator’s Observation: At the time of the second jobsite inspection performed on 11/2/2023 it was noted that the distance of the second awning was 20 feet. Within this 20 foot span there were 18 panels installed. Based on the evidence gather from Mesa Awning and noted in line item number 1 there should have been a total of 20 panels installed for the length of awning span. A water test was performed on this side of the residence and there was notable leakage in various areas which included screw holes that remain unfilled and open to the elements. There were also jagged cuts which resulted in uneven edges of panel which also affected drainage in some areas. Any denting cause by hail on either side of the residence is not due to the respondent’s workmanship. Allegation of improper installation of panels is verified. Also holes, irregular cut edges of paneling and water leakage is verified. Respondent shall correct by the appropriate means.

Compliance inspection Findings: At the time of the inspection the south side awning was also repaired by the respondent per the written directive. A water test was performed in this area and the results were such. There was a location above the South side door in the residence that continued to leak a substantial amount of water. This leak ran down the facia of the residence and created a large puddle on the porch and adjacent to the porch. Due to the amount of leakage between the South side roof of the residence and the metal awning it is determined that the repairs in this area do not meet industry standards.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

15. Respondent filed an answer to the Citation.

16. The matter was referred to the OAH for an evidentiary hearing.

17. A hearing was held on November 18, 2024 and November 20, 2024.

18. At hearing, Investigator Avila testified regarding his investigation of the complaint, the job site inspections, and the issuance of the Directive. Complainant testified on behalf of herself and presented the testimony of Janet Bates. Respondent presented the testimony of Mr. Beach and Zeke Salgado.

19. Investigator Avila explained that Metal roofing and metal awning are two separate categories. Investigator Avila stated that Respondent was require to hold an R-3 license before installing the awnings. The R-3 license applies to awning, canopies, car ports and covered patios. Investigator Avila testified to the effect that although some materials needed for awnings and roofing overlap, awnings and roofs are substantially different. However, Mr. Avila explained that he made an error when he failed to notify Respondent that he was not allowed to perform corrective work without an R-3 license. The Directive did not include language advising Respondent seek to resolve the matter through a financial agreement.

20. It is undisputed that Respondent obtained an R-3 license prior to the hearing.

21. Complainant asserted that Respondent performed poor work when it installed the awnings.

22. Mr. Beach denied that Respondent performed poor work it installed the awnings at Complainant’s residence. Mr. Beach opined that the awnings were damaged from two storms that occurred after Respondent completed construction. Respondent provided no written evidence of weather reports during the hearing. Mr. Beach did not believe that Respondent needed an R-3 license to install the awnings. Mr. Beach contended that awnings and roofs are essentially the same. Mr. Beach stated that during the compliance job-site inspection, he operated the water hose during the test. Mr. Beach stated that he turned the hose on at full blast. However, Mr. Beach stated that the leak was minimal. Mr. Beach contended that awnings are not water proof, but rather, water resistant.

23. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on December 10, 2024, Respondent’s license was first issued on July 9, 2003, and is active. Such prior License record shows that there is only one open complaint against Respondent. Additionally, such prior License Record shows that the complaint was resolved or settled after the issuance of a corrective work action or citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat R4-9-108(A), and thereby of Ariz. Rev. Stat § 32-1154(A)(3).

4. It undisputed that Respondent did not have an R-3 license when it installed the awnings. However, Respondent has obtained the required R-3 license. Therefore, the alleged violation of Ariz. Rev. Stat. § 32-1154(A)(16) should be dismissed.

5. The preponderance of the evidence shows that Respondent failed to appropriately correct the items listed in the Registrar’s Directive. However, the evidence presented at hearing shows that Respondent should not have been directed to perform any work without an R-3 license and Investigator Avila failed to properly advise Respondent. Therefore, the alleged violation of Ariz. Rev. Stat. § 32-1154(A)(22) should be dismissed.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 186811 issued to Respondent, for two days.

It is further recommended that the Registrar dismiss the alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(16) and (22).

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 10, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Nanneene McManis

[email redacted]

Beach Ventures Inc.

[email redacted]

Bradley D. Weech

Davis Miles McGuire Gardner

[email redacted]

By: OAH Staff