ALJDEC - Licensing

2024A-00053-CHC-ROC · Registrar of Contractors · 2024-10-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anthony Berry,

COMPLAINANT

v.

Hirsch Masonry & Construction LLC

License No. ROC 345664,

RESPONDENT

No. 2024A-00053-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 17, 2024

APPEARANCES: Complainant Anthony Berry appeared on his own behalf via Google Meet. Registrar of Contractors Investigator Mike Springer appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 and 2 were admitted into evidence.

_____________________________________________________________________

Hirsch Masonry& Construction LLC (Respondent) is the holder of License No. 345664 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 25, 2023, Anthony Berry (Complainant) agreed to have Respondent install an OSB deck on his roof at his home in Sierra Vista, Arizona. The contracted amount was $20,500.00.

On or about January 11, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Springer. The jobsite inspection was performed on February 21, 2024, and Respondent was not present.

Investigator Springer then issued a Written Directive on or about February 21, 2024, that provided in pertinent 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 March 8th, 2024.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Contractor did not cover roof when Rained Aug 16, 2023 and sustained interior roof leak/staining

Investigator’s Observation: Multiple areas on South side of house where water has leaked and stained ceiling. Including kitchen, bedrooms.

Shingles are installed poorly, exposed nails.

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: 2 - During project the contractor was told about the eve that was not straight and we were told it would be repaired.

Investigator’s Observation: Replacement fascia boards are crooked, have gaps and are not flush with each other.

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 - he send a guy out and cut some metal flashing and used my roofing tar and did a job less than what a 1st grader could do

Investigator’s Observation: Flashing around chimney and A/C unit is poorly done with large gaps.

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: 4 - texted him that multiple leaks in rood to include heat pump, chimmney, multiple rooms and no one came to do any repairs

Investigator’s Observation: Areas on roof have humps, exposed nails and shingles do not cover drip edge flashing. Drip edge flashing is poorly installed.

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...

(All errors contained in the original).

On March 19, 2024, 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); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about April 2, 2024, Respondent filed an Answer with the Registrar.

On or about April 18, 2024, a Notice of Hearing was issued setting a hearing on June 3, 2024, at the Office of Administrative Hearings, an independent state agency. A copy of the Notice of Hearing was mailed and e-mailed to Respondent’s addresses of record.

After several continuances, the hearing was held on September 17, 2024, 2024. A copy of the Order setting the hearing was sent to Respondent’s e-mail addresses of record

At hearing, Investigator Springer testified as to the Registrar’s involvement and the above timeline.

Investigator Springer testified that he verified with Complainant that Respondent had not performed the corrective work.

Investigator Springer also testified that Complainant had nearly his entire roof tarped and held down with tires to prevent leaking.

Finally, Investigator Springer testified that Respondent’s contract did not contain all of the proper statutory language.

Mr. Berry testified that he concurred with Investigator Springer’s testimony and that now he has had a portion of his roof repaired to stop the leaking.

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

Administrative notice was taken of Respondent’s prior License record on October 4, 2024. Such prior License record reflected that Respondent’s License No. 345664 was first issued on June 19, 2023, and revoked as of September 23, 2024. The License record further reflected that there was one open case, namely the present complaint.

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 preponderance of 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 preponderance of the evidence also showed that Respondent’s contract was in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, as it did not contain the “right to file” language.

The evidence established Respondent failed 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 revoke Respondent’s License No. 345664.

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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that Respondent shall provide a sample updated contract which complies with A.R.S. § 32-1158, within 30 days. It is recommended that Respondent’s license remain suspended/revoked until this matter is satisfactorily completed.

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, October 4, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Hirsch Masonry & Construction LLC

[email redacted]

Anthony Berry

[email redacted]

By: OAH Staff