ALJDEC - Licensing

2023A-11147-CHC-ROC · Registrar of Contractors · 2024-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alexander Kairoff,

COMPLAINANT

v.

West Coast Roofing LLC

License No. ROC 235353,

RESPONDENT

No. 2023A-11147-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 10, 2024

APPEARANCES: Complainant Alexander Kairoff appeared on his own behalf. Ryan McDaniel, Owner, appeared on behalf of Respondent West Coast Roofing LLC, which was represented by Corey B. Larson.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

West Coast Roofing LLC (Respondent) is the holder of License No. 235353 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 19, 2023, Eden Roc Gardens 1 Condominiums entered into a contract with Respondent for, among other things, a roof tear off and replacement.

On or about September 25, 2023, the Registrar received a Complaint against Respondent from Alexander Kairoff alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. After a jobsite inspection, Investigator Springer 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 December 1st, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - The west side exterior building three catwalk ceiling was extensively damaged due to the failure of the flat roof section above it, and water penetration into this section of the roof resulted. Multiple cracks, drywall, and mold damage were not present prior and appeared shortly after the new roof was installed on this building.

Investigator’s Observation: Water damage is under the breezeway. The fascia in this area is bent and damaged. It appears that the bent edges of the fascia are catching water falling from the drip edge. Contract states under Bldg 3 "Replace damaged fascia as necessary. ( to be billed at $14,00 per linear foot)" Pics 1-5

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.

Following the issuance of the written directive, Respondent emailed Complainant regarding the required corrective work. Complainant was dealing with the recent loss of his mother and did not respond to Respondent’s emails. Complainant forwarded the emails to the condominium’s manager, but had no knowledge if the manager responded.

After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.

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 Springer testified that he believed the metal part of the roof that was damaged was fascia and, therefore, Respondent had a contractual obligation to replace or repair it to prevent further damage.

Complainant testified that this section of the building was the only one that was damaged and he believed the damage was attributable to Respondent. Complainant denied Respondent’s assertion that the installation of gutters would have prevented the damage as none of the other buildings had gutters installed after Respondent completed its work. Complainant admitted he did not respond to Respondent’s email regarding the work required by the written directive.

Mr. McDaniel testified that the metal part of the roof observed to be damaged was not “fascia” as contemplated by the contract, but was a metal skirting installed over the fascia. Mr. McDaniel noted that the cost quoted in the contract to replace fascia was dramatically less than the cost of the metal skirting referenced in the written directive. Mr. McDaniel stated he attempted to contact Complainant regarding the written directive, but never received a response.

Administrative notice is taken of Respondent’s prior License record on April 30, 2024. Such prior License record reflects that Respondent’s License No. 235353 was first issued on January 12, 2008, 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. 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 uncontroverted evidence established that Respondent attempted to contact Complainant regarding the written directive and received no response. The denial of access to perform corrective work constitutes valid justification for a failure to comply with a written directive. As such, Complainant failed to establish 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).

As the Registrar neither expects nor demands perfection from licensees, contractors must be afforded an opportunity to correct any workmanship issues identified in a written directive. As Respondent in this matter was denied any opportunity to correct the work at issue, Respondent cannot be said to have failed to 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 Administrative Law Judge makes no conclusion as to whether the work identified in the written directive was, in fact, the responsibility of Respondent as it is unnecessary to make such a determination given the denial of access.

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2023-11147 against Respondent’s License No. 235353 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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, April 30, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Alexander Kairoff

[email redacted]

Mike Springer

[email redacted]

Corey B. Larson

Waterfall, Economidis, Caldwell, Henshaw and Villamana, P.C.

[email redacted]

By: OAH Staff