ALJDEC - Licensing
2024A-09319-CHC-ROC · Registrar of Contractors · 2025-01-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Craig Miles Smith ,
COMPLAINANT
v.
Pro-Tec Contracting LLC
License No. ROC 326962,
RESPONDENT
No. 2024A-09319-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 18, 2024.
APPEARANCES:
For Complainant: Craig Smith.
For Respondent: Failed to appear.
For the Registrar of Contractors: Investigator Joey Chester.
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.
_____________________________________________________________________
FINDINGS OF FACT
Pro-Tec Contracting LLC (Respondent) was the holder of License No. 326962 issued by the Arizona Registrar of Contractors (Registrar) on November 25, 2019.
On or about February 22, 2024, Craig Smith (Complainant) entered into a contract with Respondent for, among other things, to re-shingle Complainant’s roof.
On or about August 15, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.
The Registrar assigned the complaint to Investigator Joey Chester, who issued a Jobsite Inspection Notice on August 20, 2024, scheduling the inspection for September 4, 2024.
Investigator Chester conducted the jobsite inspection on September 4, 2024, and Respondent was present. Following the inspection, Investigator Chester issued a Written Directive From the Registrar to Respondent on September 11, 2024, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item 2: Shingles were not staggered, there are vivid pattern vertical creases.
Investigator’s Observation: At time of inspection, the back half roof shingles were not laid to overlap the existing sheet along with not spaced correctly to appropriately cover the roof, respondent will need to fix by appropriate means
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 3: Roof patchwork had seams apart from joists
Investigator’s Observation: During inspection, visible saw patchwork in roof on back yard patio that had not been sealed up or painted, respondent will need to correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 4: Angle flashing around perimeter cut short and pieced together in series of small pieces apparently to conserve product. Bare wood showing. Investigator’s Observation: During inspection, was able to verify flashing inadequately covering the roof line all around the entire roof, respondent will need to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 5: Whirlybird vent had fell off roof twice, yet they put it on anyway and does not function.
Investigator’s Observation: At the time of inspection the east side vent was not moving, however the west side vent was, respondent will need to inspect vent and correct if necessary.
Governing Rule: This is a general statement and does not implicate a specific workmanship issue. It therefore and cannot be evaluated by the ROC.
The Written Directive required Respondent to notify Investigator Chester of Respondent’s compliance with the directive prior to 5:00 p.m. on October 4, 2024.
After the compliance date, Complainant informed Investigator Chester that no corrective work had been performed on the project.
On October 9, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A) and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on October 24, 2024. Respondent’s Answer stated that Respondent had identified a course of action to correct the issues.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On November 6, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for December 18, 2024, 9:00 AM.
The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record, the same address at which Respondent received the Citation to which it responded.
The hearing was held via Google Meet on December 18, 2024.
Respondent did not request that the hearing be further continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Chester testified in support of his investigation and the deficiencies identified in the Directive.
Complainant testified that there were additional issues, but he agreed with Investigator Chester’s testimony.
Administrative notice was taken of Respondent’s prior License record on January 6, 2025. According to that record, Respondent’s License No. 326962 was suspended on June 27, 2024, for lack of a qualifying party. There was one open complaint, two disciplined cases, and two resolved cases against Respondent’s license.
CONCLUSIONS OF LAW
Respondent was deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the order setting the continued hearing date to Respondent at its email address of record.
This matter lies within the Registrar’s jurisdiction.
Respondent’s suspended 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. Respondent bears the burden of proof to establish an affirmative defense 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.”
For the purposes of this hearing, Respondent only had notice of the alleged violations in the Citation. Accordingly, this Tribunal can only find violations of law that appeared in the Citation. For complaint-specific items, only alleged violations identified by the Investigator and deemed uncorrected are noticed in the Citation: as stated in the Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent with violation(s).” Where the investigator did not find cause to charge Respondent, charges were not incorporated into the Citation. The Registrar’s process provides the Respondent an opportunity to correct its deficient work by appropriate means; without that opportunity, the alleged deficiency is not ripe for hearing.
The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding Complaint Items 2, 3, and 4.
The preponderance of the evidence 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), specifically regarding Complaint Items 2, 3, 4 and 5.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for 5 days Respondent’s License No. 326962.
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). 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, January 6, 2025.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Joey Chester
[email redacted]
Craig Miles Smith
[email redacted]
Pro-Tec Contracting LLC
[email redacted]
By: OAH Staff