ALJDEC - Licensing
2024A-00861-CHC-ROC · Registrar of Contractors · 2024-06-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robert McCarthy,
COMPLAINANT,
v.
Skyland Roofing LLC,
License No. ROC 329159,
337088, and 340583,
RESPONDENT.
No. 2024A-00861-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on June 3, 2024.
APPEARANCES:
For Complainant: Robert McCarthy.
For Respondent: No appearance.
For Registrar of Contractors: Investigator John Smith.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing packet submitted by the Registrar of Contractors. Complainant’s Exhibits one through seven.
FINDINGS OF FACT
Skyland Roofing LLC (Respondent), is the holder of Licenses Numbered 329159 and 337088 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 23, 2023, Robert McCarthy (Complainant) entered into a contract with Respondent for, among other things, replacing a residential roof that had been leaking.
On January 22, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent damaged the solar water heater system, left trash on the roof, broke tiles, and failed to repair the roof, which resumed leaking.
The Registrar assigned the complaint to Investigator John Smith, who issued a Jobsite Inspection Notice on January 24, 2024, scheduling the inspection for March 11, 2024. On February 29, 2024, Investigator Smith sent a reminder notice to the parties about the March 11, 2024 inspection.
Investigator Smith conducted the jobsite inspection on March 11, 2024, and Respondent was not present. Following the investigation, Investigator Smith issued a Written Directive From the Registrar to Respondent on March 11, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “...trash had been left on the roof and there were numerous broken tiles... In January 2024, the roof starting leaking again in the same location as the original incident.”
Investigator’s Observations: Verified.
The respondent completed a re-roof approximately April of 2023.
Current conditions observed:
• There is debris remaining on the roof.
• There are several areas of cracked/broken tiles, including ridge cap tiles.
• Some tiles have holes in them from previous anchors.
• Some tiles have exposed nails / nail holes.
• Some tiles have insufficient (less than 3 inches) over-lap.
• There is an active leak on the north face of the roof.
• Resulting from the active leak, there is interior moisture damage.
The Written Directive required Respondent to notify Investigator Smith of Respondent’s compliance with the directive prior to 5:00 p.m. on March 26, 2024.
On March 28, 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); and A.R.S. § 32-1154(A)(22), also requiring an Answer by April 12, 2024.
Respondent submitted an Answer to the Citation on April 14, 2024. In its Answer, Respondent apologized for the inconvenience.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On May 1, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing at 9:00 a.m. on June 3, 2024. The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record.
A May 15, 2024 Order from the Office of Administrative Hearings was sent to the parties at their email addresses of record and provided the parties the information necessary to join the hearing via Google Meet.
The hearing was held via Google Meet on June 3, 2024.
Before the hearing, Respondent did not request that the hearing be continued, and although the start of the hearing was delayed 15 minutes, Respondent did not appear. Consequently, Respondent did not present any evidence at hearing.
Investigator Smith testified that the Directive items were accurate.
Complainant testified that Respondent did poor work, left a mess at the worksite, damaged the Complainant’s solar water heater system, and did not communicate well with the Complainant. Respondent offered to and attempted to correct the work, but after claiming to have corrected the work, Respondent continually failed to provide a notice of completion and photographs of the completed work. Complainant checked the roof and determined that the work was done poorly, again.
Complainant stated that Respondent’s Qualifying Party offered to repair the roof through Mrs. Roofing LLC, instead of through Respondent, because Mrs. Roofing LLC still had an active license.
On June 4, 2024, Vanessa Larios, Respondent’s Qualifying Party, submitted a Motion for Continuance stating that she had miscalendared the hearing. Ms. Larios sought to reschedule the hearing so that she could “express [her] intention to return and repair the work [her] crew had done.”
Administrative notice was taken of Respondent’s prior License records on June 17, 2024. According to those records:
Respondent’s License No. 329159 (Specialty Dual CR-42 Roofing) was first issued on June 4, 2020; it was revoked on May 1, 2024; and there were two open cases, four cases resulting in discipline, and one resolved/settled cases against the license.
Respondent’s License No. 337088 was first issued on March 10, 2022; it was suspended on February 22, 2024; and there was one resolved/settled case against the license.
CONCLUSIONS OF LAW
Respondent is deemed to have received the Notice of Hearing and Google Meet Order by methods that achieved actual notice.
Mrs. Roofing LLC is deemed not to be a respondent in this matter. Mrs. Roofing LLC does not have any active cases listed with the Registrar, it is not named on any of the relevant documents, and it did not receive notice of this matter.
The Motion to Continue is DENIED. An untimely motion to continue may be granted if the movant demonstrates good cause and continuing the hearing would “further administrative convenience, expedition or economy; or . . . avoid undue prejudice to any party.” A movant can demonstrate good cause for making an untimely motion “by showing that the grounds for the motion could not have been known in time . . . ”, and here, Respondent cannot make such a showing. Further, Respondent’s stated purpose for requesting the continuance is not legally relevant; holding a hearing for such a purpose would not further convenience, expedition, or economy, and would not avoid undue prejudice to Respondent.
This matter lies within the Registrar’s jurisdiction.
Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
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 did not perform the work in accordance with professional industry standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
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 revoke Respondent’s License Numbers 329159 and 337088.
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 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, June 24, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Skyland Roofing LLC
2204 E Sunland Vista
Tucson, AZ 85713
[email redacted]
John Smith
[email redacted]
Robert McCarthy
10178 N. Pitchingwedge Lane
Oro Valley, AZ 85737
[email redacted]
By: OAH Staff