ALJDEC - Licensing

2024A-02406-CHC-ROC · Registrar of Contractors · 2024-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Reana Trujillo

COMPLAINANT,

TKO Customz LLC

License No. ROC 343730,

RESPONDENT

No. 2024A-02406-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 10, 2024

APPEARANCES: Reana Trujillo represented herself. Lawrence Felder, Esq. represented TKO Customz LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about November 27, 2023, TKO Customz LLC (Respondent) agreed to replace Reana Trujillo’s (Complainant) shingle roof with a metal roof, for the amount of $9,800.

2. Complainant paid Respondent $9,800 for the project.

3. Respondent did not provide Complainant with a written contract that advised Complainant of her right to file a complaint with the Arizona Registrar of Contractors (Registrar) against Respondent for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1162(A).

4. On or about December 19, 2023, Respondent started work.

5. Respondent stopped work on December 20, 2023.

6. On or about February 27, 2024, the Registrar received a complaint from Complainant alleging poor work on the part of Respondent.

7. The Registrar assigned the complaint to one of its investigators, Michael Springer (Investigator Springer).

8. On or about April 16, 2024, Investigator Springer conducted a job-site inspection.

9. On or about On May 17, 2024, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows:

Dear Respondent: 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 June 4th, 2024.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Order new sheets that go all the way up to the edge of the ridge vent. Sheets that were ordered were way to short.

Investigator’s Observation: Panels go under ridge gap 3/4" in some areas, 2" in others. No filler strip was used. It is feasible that wind driven water can bypass the panel and leak under the ridge cap.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 3 - Install new skylights since black tar was gobbed up all around the skylights.

Investigator’s Observation: Excessive tar was used to seal skylights. Skylights are mounted under metal panels. Correct flashing technique should used. Manufacturer specifications need to be provided.

Compliance Item: 4 - Top of the skylights are ponding water.

Investigator’s Observation: Water is ponding on the back of the skylights against the tar sealant.

Compliance Item: 5 - Gable is not aligned with the peak. (Peak not centered with gable)

Investigator’s Observation: Gable pieces do not terminate at center of gables front and back.

Compliance Item: 6 - Nails were not properly removed (on the entire roof). New sheets are damaged by nails. (Dents all over roof)

Investigator’s Observation: Most panels are dented from underneath. All dented panels should be replaced.

Compliance Item: 7 - Gable trims are bowing, bent, not straight. (Trim underneath was not removed and the top panel was left over hanging.)

Investigator’s Observation: Front gable finish trim is not flush to fascia due to main roof panel overhang. Roof panel should be flush to gable to allow finish trim to install flat. Rear gable trim not flush due to original drip edge not removed or cut back.

Compliance Item: 8 - Peak is not aligned and straight. (Bowed, Holes)

Investigator’s Observation: Ridge cap has numerous holes from missed screws, this should be replaced. Ridge is also very crooked and dented.

Compliance Item: 9 - Valley is not cut uniformly and equal on both sides. It looks terrible. (Cuts are jagged and not clean)

Investigator’s Observation: Valley edges are not uniform. Cuts are jagged with metal splinters. Cuts have not been treated and are rusting.

Compliance Item: 10 - (Small section of roof) No flashing against the house. Gable trim is very sloppy. (One screw holding Piece)

Investigator’s Observation: Small section at rear of home has one screw holding panel on and there is no flashing against wall.

Compliance Item: 11 - On most of the roof the overlaps are not done correctly. (Lifting, not fastened down)

Investigator’s Observation: Screws were placed approx 2-3 inches from overlap edge, overlap is very loose in many places.

Compliance Item: 12 - Overhangs do not match at eaves.

Investigator’s Observation: Panels on West side overhang eave by approx. 1 inch, there is no overhang on the East side of the home. Industry standard shows 1-4" overhang is recommended. Overhangs should match each side.

10. On or about June 27, 2024, Investigator Springer conducted a compliance job-site inspection. Investigator Springer discovered that the following conditions had not been repaired by Respondent:

Compliance Item: 3 - Install new skylights since black tar was gobbed up all around the skylights.

Compliance Item: 4 - Remove all the existing drip edge and metal flashing from the perimeter like it said would be done in the contract.

Investigator’s Observation: North gable drip edge is not flush to fascia due to roof panel overhang. Roof panel should be flush to gable to allow drip edge to install flat.

Compliance Item: 10 - Peak is not aligned and straight. (Bowed, Holes)

Investigator’s Observation: Ridge cap has numerous holes from missed screws, this should be replaced. Ridge is also very crooked and dented.

Compliance Item: 11 - Valley is not cut uniformly and equal on both sides. It looks terrible. (Cuts are jagged and not clean)

Investigator’s Observation: Valley edges are not uniform. Cuts are jagged with metal splinters. Cuts have not been treated and are rusting.

Compliance Item: 12 - (Small section of roof) No flashing against the house. Gable trim is very sloppy. (One screw holding Piece)

Investigator’s Observation: Small section at rear of home has one screw holding panel on and there’s no flashing against wall.

11. On or about August 5, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(C)); Ariz. Rev. Stat. sections 32-1154 (12),(22); Ariz. Rev. Stat. section 32-1158.

12. Respondent filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. A hearing was held on September 10, 2024. At hearing, Complainant testified on behalf of herself and presented the testimony of Phillip McFate. William Clowers, the principal of Respondent, testified on behalf of Respondent. Investigator Springer testified consistently with his compliance job-site inspection notes.

15. Phillip McFate is a contractor who was previously licensed by the Registrar. Mr. McFate opined that Respondent performed poor work with respect to the skylights and the trims.

16. At the job-site inspection, Mr. Clowers stated that he noticed damage that was not present when he last left the worksite. Mr. Clowers did not agree with the findings of Investigator Springer. Mr. Clowers stated that he requested that Complainant allow him access to the inside of the home because he wanted to set the lights in the correct place. Mr. Clowers stated that Complainant did not allow him to re-enter her home to correct the lights. Mr. Clowers stated that he did not apply black tar but that it was preexisting. Mr. Clowers also stated that Complainant allowed other individuals on the roof after he completed his work.

17. Complainant denied that she refused Mr. Clowers access to her home.

18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on September 30, 2024, Respondent’s license was first issued on March 15, 2023, and is active. Such prior License record also shows that there is only one open complaint against Respondent. Respondent’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.

CONCLUSIONS OF LAW

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

2. Complainant bears the burden of proof to establish Respondent’s statutory

violation by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. 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)

3. Upon review of the evidence presented at hearing, the Administrative Law

Judge concludes that Respondent provided insufficient evidence to rebut the credible testimony of Investigator Springer regarding Respondent’s poor work. The preponderance of the evidence shows that Respondent did not perform the work in accordance with professional industry standards, which is a violation of A.A.C. R4-9-108(C), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

4. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

5. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 343730 issued to TKO Customz, LLC, for two days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), 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, September 30, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Reana Trujillo

[email redacted]

TKO Customz LLC

[email redacted]

Lawrence J. Felder, Esq.

Resolvere Law PLLC

[email redacted]

By: OAH Staff