ALJDEC - Licensing

2024A-01094-CHC-ROC · Registrar of Contractors · 2024-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nikhil Seth,

COMPLAINANT

v.

Mac Brothers LLC

License No. ROC 274149,

RESPONDENT

No. 2024A-01094-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 16, 2024

APPEARANCES: Complainant Nikhil Seth appeared on his own behalf. Kevin Naughton, Co-Owner, appeared on behalf of Respondent Mac Brothers LLC.

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

Mac Brothers LLC (Respondent) is the holder of License No. 274149 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 25, 2023, Nikhil Seth (Complainant) entered into a verbal contract with Respondent for roofing work. The parties agreed to a total contract price of $56,000.00.

On or about January 27, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Daniel Edwards. After a jobsite inspection, Investigator Edwards 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 April 5, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - There are multiple leaks in the roof

Investigator’s Observation: Substantiated, multiple area showed signs of leaks and water damage (garage ceiling and two areas at the back patio ceiling; one located at the roof drain connections and another adjacent to the wall at the southeast corner of the patio area). Respondent shall ensure roof is free of leaks and address water damage by appropriate means.

. . . .

Compliance Item: 7 - Roof does not have 1inch foam and appears was left exposed before coating was applied which too appears to be inadequate

Investigator’s Observation: Unable to substantiate allegation in regards to foam thickness, overall thickness is currently unknown and unable to be demonstrated.

Regarding overexposed foam, various areas appear to have been exposed in excess of 48 hours and the foam is dark orange in appearance. Many foam areas lack any coatings. Respondent shall correct overexposed foam by appropriate means

. . . .

Compliance Item: 8 - tile roof has similarly poor workmanship with valleys and flashing done improperly and not up to code and good workmanship

Investigator’s Observation: Tyvek 200 underlayment is exposed in multiple areas, and the underlayment does not appear to be fastened appropriately; underlayment has a printed pattern which identifies the locations of required fasteners and underlayment appears to be lacking fasteners in multiple locations. Underlayment is wavy and does not appear to be secured at the deck perimeter; per manufacturer's installation requirements, "Apply Tyvek® ProtecTM taut and wrinkle-free. Do not stretch."

Flashings at the sidewalls (where the tile roof meets vertical stucco walls) appear poorly installed and have been cemented with tar in an attempt to seal the areas.

Allegations regarding building code compliance would need to be addressed with the authority having jurisdiction over building code (City of Peoria).

Respondent shall address the issues noted above by appropriate means.

. . . .

Compliance Item: 9 - Deterioration in the cement applied on the corners has already started

Investigator’s Observation: Mud balls at roof ridges appear to be poor in overall appearance and many appear to be crumbling as of inspection date. Per standards, "Mortar should be neat and reasonably uniform in color."

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 10 - The vents have also not been sealed properly.

Investigator’s Observation: Many vent base flashings are not secured to the roof deck and are floating above the roof surface. Overexposed roof foam is visible beneath these flashings. Tile penetrations appear to lack any tile flashing or storm collars and mortar has been applied to the penetrations instead. T-top flashings at foam roof appear flashed with wrinkled Tyvek and coated, and this does not appear to be an approved use of the Tyvek material.

Mortar appears to have been used in lieu of proper metal flashing in various areas throughout the installation.

Per ROC standards,

“Possible Deficiency: Vents not flashed or improperly flashed.

Acceptable Tolerance: Unapproved, missing or improperly installed roof jacks are unacceptable.

Contractor’s Responsibility: Contractor should make necessary repairs.”

“Possible Deficiency: Improper or inadequate flashing.

Acceptable Tolerance: Flashings should be installed according to manufacturer's recommendations and should be an approved type.

Contractor’s Responsibility: Contractor should make necessary repairs.”

Respondent shall ensure all penetrations are flashed as appropriate and all materials are installed per manufacturer specifications by appropriate means.

Following the issuance of the written directive, Respondent performed some corrective work.

Complainant reported to Respondent that the corrective work did not resolve all of the issues and additional work needed to be performed.

Prior to the expiration of the deadline in the written directive, Respondent returned to the jobsite to inspect the project and a verbal altercation occurred. Complainant’s general contractor called the police regarding the incident.

When the offending party left the site, the general contractor canceled the call to the police.

After the deadline in the directive expired, Investigator Edwards was notified the corrective work had not been completed.

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).

Investigator Edwards testified as to his observations of the project.

Complainant testified that he had a verbal agreement with Respondent to perform the work for a total cost of $56,000.00, but at some point Respondent attempted to convert the contract to a time and materials contract and asked for additional payment. Complainant denied ever agreeing to pay more than the initially agreed upon price.

Mr. Naughton testified that he never agreed to a contract price of $56,000.00. Mr. Naughton alleged that Complainant made changes to the project and that, in part, resulted in the increased cost. Mr. Naughton asserted that he and his family had been operating in the area for decades without incident and this project with Complainant forced Respondent to close the business.

Administrative notice is taken of Respondent’s prior License record on September 12, 2024. Such prior License record reflects that Respondent’s License No. 274149 was first issued on August 11, 2011, and was suspended on June 21, 2024, for lack of bond. 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 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 evidence established that Respondent did not have a written contract with Complainant as required by A.R.S. § 32-1158(A). Therefore, the Registrar 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 complete the corrective work in an appropriate manner following the Directive being issued. While there was an incident at the jobsite, the evidence was insufficient to establish that Complainant denied Respondent access to the property to perform additional corrective work. 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. 274149 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.

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, September 12, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mac Brothers LLC

[email redacted]

[email redacted]

Daniel Edwards

[email redacted]

Nikhil Seth

[email redacted]

By: OAH Staff