ALJDEC

00F-2289-ROC · Registrar of Contractors · 2000-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2000. APPEARANCES: Irene Mayer, Complainant’s representative; Scott Rasmussen, Respondent’s representative; Gaylen Brotherson, witness; Bob Tyler, witness; and Robert Mechsner, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainant hired Respondent to re-roof four buildings, but after the work was done, the roofs still leaked. The Registrar of Contractors Inspector found, and the evidence supports, that the leaks come from a design problem in the equipment screens and their support posts. The leaks are not due to the work done by Respondent or from his duties under his contract. Therefore, I recommend that this appeal be dismissed. I also recommend that the four Complaints be consolidated into one in the records of the Registrar of Contractors’ computers. FINDINGS OF FACT 1. On January 26, 1999, Complainant hired Respondent, Image Roofing Co., Inc., to re-roof some condominium units. Once the roofs were finished, the condominium residents experienced leakage through the roofs. Respondent visited the site several times trying to determine where the leaks were but was unable to find it. 2. On March 24, 2000, Complainant filed four Complaints with the Registrar of Contractors (one Complaint for each building) complaining about leaks. On May 5, 2000, a Registrar of Contractors Inspector, Robert Mechsner, conducted an initial job site inspection. He found that the leaks came from the posts where metal equipment screens are attached to the roof. Mr. Mechsner testified that the screens were attached by posts that extended through the roof to the frame of the buildings. At the point where they meet the roof, the posts are covered by pitch pans that are sealed to prevent leaks. Respondent had resealed the pans, but the leaks continued. In the opinion of Mr. Mechsner, the leaks were coming from the posts themselves. The posts were constructed using two dry metal C- channels fitted together but not sealed. Because two dry metal pieces cannot realistically be fit so closely together that water cannot get in and travel to the bottom, the leaks likely came from there. This was not part of the roof, it was a design problem with the metal equipment screens. Therefore, Mr. Mechsner found that there was no violation by the Respondent. He declined to issue a Corrective Work Order on this matter. On May 5, 2000, he did issue a Corrective Work Order on another minor matter that was not included in the Complaints but that the Inspector thought could be done better. That work was corrected by the Respondent in a timely manner. 3. Complainant disagreed with the Registrar of Contractors Inspector and requested a hearing on the issue of the leaks. Complainant argued that some of the leaks that appeared after the roof was fixed were not there before Respondent did the job. Respondent replied that whatever was keeping them from leaking may have come loose. Also, he pointed out that some work was done on the air conditioning. The air conditioning unit itself had leaked and the work on it may have caused some leaks. None of the current leaks, however, came from the roof job itself, he argued, because they had run many tests and the only remaining explanation was that the posts were leaking. 4. Complainant argued that the roofer should accept responsibility for all leaks because, as a purchaser of its services, Complainant had a right to expect a dry roof. If the posts were leaking, the roofer, as a professional, should have informed it prior to bidding the job. Without commenting on the merits of this type of argument in general, the roofer should not be held responsible for failing to discover the problem in this case. The weight of the evidence established that the problem stemmed, not from a roofing problem, but from a design problem with the buildings. This is not within the expertise of a roofer and he is not expected to be knowledgeable about it in the course of using his roofing license. Therefore, the fact that he was not aware of the source of these leaks prior to re-roofing the buildings should not be a basis for disciplining his license. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3) and (7) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 6. In this case, the weight of the evidence has established that Respondent did all it could do to provide Complainant with a professionally done roof. The leaks have been shown to arise from a design problem allowing water to run down posts that poke through the roof. This is not a part of the roof or part of Respondent’s contract, so Respondent cannot be held responsible for it. Therefore, the Registrar of Contractors should not discipline Respondent’s license in this case. Likewise, Respondent is a roofing contractor and is not expected to locate design problems for customers as a part of his license. Therefore, no discipline should arise as a result of the fact that he was not aware that Complainant had a design problem prior to re-roofing the buildings. 7. It should be noted that Complainant filed four Complaints regarding the same job. It did so because there were four buildings involved. Since this was not necessary and caused it to appear that there were problems with four different jobs done by Respondent, he objects to the effect this has on his reputation. People wishing to check his record with the Registrar of Contractors will see four Complaints where there should have been one. I recommend that the Registrar of Contractors adjust its computer records, if possible, to conform to the reality of this Complaint. RECOMMENDED DECISION Because the Complainant established no violation of the applicable statutes in any area complained of in her Complaint, I recommend that the Registrar of Contractors decline to discipline Respondent’s license and dismiss all of the above Complaints. In addition, I recommend that whatever record remains in the Registrar of Contractors’ computers in the above matter be consolidated to reflect one Complaint rather than four Complaints.

Done this day, September 14, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826