ALJDEC

00F-2484-ROC · Registrar of Contractors · 2000-11-27

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 27, 2000, adjourned and reconvened on November 27, 2000. APPEARANCES: Complainant : Gareth Hyndman II, Esq., represented Cyndee Rae. Respondent : Jason Sherman, Esq. (Day 1) and Jonathan Alcott, Esq. (Day 2) represented J. Duncan Brock Builder, Inc. Registrar of Contractors Inspector : Mel Purchase ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent is in the business of constructing residential structures doing business in the state of Arizona as J. Duncan Brock Builder, Inc., holding a Class B- license (General Residential Contracting) issued by the Registrar of Contractors. J. Duncan (“Jack”) Brock is the President of and Qualifying Party for the company.

2. Complainant and Respondent entered into a written contract in August 1998 whereby the Respondent contractor agreed to furnish material and perform services necessary to remodel and repair certain portions of Complainant’s residence, including the roof, situated at 45 W. Willetta Street, Phoenix, Arizona.

3. Complainant initially filed a complaint with the Registrar of Contractors on April 18, 2000 that resulted in the Registrar’s issuance of a “Corrective Work Order” on May 5, 2000, the Inspector having visited the site on that date along with the parties. A subsequent inspection (prehearing inspection) was undertaken by the Registrar’s Inspector on September 26, 2000.

4. The Registrar’s “Corrective Work Order” of May 5, 2000 advised that a leak was discovered on the north side of the roof’s west dormer and that the contractor was to make the necessary corrections thereto.

5. At the job site inspection of May 5, 2000, the Respondent/contractor agreed to make the necessary repairs to the roof. The Respondent/contractor reiterated his intent to make the necessary repairs at the prehearing inspection. As of this date, no corrections have been attempted.[1]

6. The Registrar’s Inspector testified on day one of the hearing, relating his observations and conclusions based upon the two job site inspections. The Inspector reiterated his finding that there is presently a leak in the subject dormer, which deficiency he attributes to the Respondent’s workmanship. The Inspector adduced his conclusion having conducted a water test on both inspection occasions. The Inspector further testified that he could not find any flashing (to ensure a proper seal) in the area of concern.

7. At the hearing, the Respondent contractor contradicted the Inspector’s conclusion regarding the presence of flashing. Therefore, the Administrative Law Judge adjourned the hearing upon directive that the parties adhere to the requirements of a forthcoming Procedural Order. The Order mandated, in part, that Complainant and Respondent present to one another a list of five (5) public/private certified inspectors within seven (7) days of the issuance of the Order, from which lists the parties were to agree upon one such independent inspector and agree upon a time within thirty (30) days of the Order at which the independent inspector would examine the roof of the subject home and (1) determine whether the Respondent contractor installed flashing in the dormers, and (2) the independent inspector’s opinion concerning whether the dormer on the west side of the house leaks and, if so, the independent inspector’s opinion as to the cause thereof. The parties fulfilled their obligations under the Order by engaging D.W. Roofing, Inc., a contractor included on each of the party’s lists, to conduct an independent inspection.

8. Dan Metot of D.W. Roofing, Inc. submitted his written opinion on November 9, 2000 and testified at the hearing concerning that opinion. Mr. Metot, an individual with roofing experience since 1992, addressed the operative questions as follows: (1) the Respondent had installed flashing in the subject dormer, (2) there is present a leak in the area, and (3) the potential leakage has as its cause the Respondent’s substandard installation of the flashing in the dormers.

8. The weight and sufficiency of the evidence establishes that the subject dormer, as constructed, is deficient in workmanship. The installation of 2X2 flashing does not satisfy the manufacturer’s guidelines set forth at pages 37 and 38 of the Residential Asphalt Roofing Manual, a publication of the “Asphalt Roofing Manufacturers Association,” (1993), Hearing Exhibit C 24. The Minimum Workmanship Standards for Licensed Contractors as published by the Registrar of Contractors, October 2000 is silent on the specifications for the installation of flashing, as is also the Uniform Building Code (“UBC”), Chapter 15. However, the UBC (1997) at ( 1509 directs that “. . . flashing and counterflashing . . . be provided per the roofing manufacturer’s instructions . . . .” While the evidence demonstrated that fiberglass shingles were installed on this project, as opposed to asphalt shingles, it is determined that there is insufficient variance in the requirements as to necessitate distinction.

9. The Respondent/contractor asserted that the problem is so minimal as to belie necessity for concern, let alone consternation, “a five minute job costing $10.” Respondent/contractor’s attitude is unacceptable as it evinces a disrespect for the process and a diminishment of the Registrar’s disciplinary obligations and authority.

10. It is further determined that these parties are incapable of productive interaction. Therefore, it is determined that the Respondent/contractor should engage D.W. Roofing, Inc. to make the necessary corrections and repairs to the subject roofing, around the dormers, following the dictates of D.W. Roofing’s November 8, 2000 written opinion. The corrective work and repair should be performed at Respondent’s cost. [2] CONCLUSIONS OF LAW 1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (3), (7) and (23); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case the Complainant, is more probably correct on the issue(s) in dispute.

3. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (3) and (23) as charged in the Citation and Complaint. Respondent failed to address the deficiency in the construction of the roofing and related dormers of which Respondent had been given notice by the Registrar’s Inspector’s issuance of two Corrective Work Orders. Respondent should be required to repair and/or replace the deficient items noted herein. It was and is a reasonable expectation of this homeowner that she be provided a residence remodeled in accordance with applicable standards. The weight of the evidence persuades that the Complainant has not been provided that to which she is entitled given her consideration expended and the requirements of Title 32.

4. Therefore, by a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful act resulting in injury to another person.

5. Respondent’s failure to effect a repair of the deficiencies of which it had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B- license be revoked on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent accomplishes appropriate and effective remedial work, by and through the third party contractor identified in Findings of Fact paragraph 10, of the deficiency described in Findings of Fact Nos. 8 and 9 herein, on or before the effective date of the Order, the revocation should not be put into effect, rather, Respondent’s license should be suspended for a period of 90 days and Respondent required to increase his surety bond by $1,000. Respondent shall provide written proof of compliance to the Registrar prior to the cessation of the suspension. IT IS FURTHER RECOMMENDED that, as an express condition for the renewal of Respondent’s license over the next two renewal cycles, notwithstanding the existence of any uniform assessment by the Registrar then in effect, Respondent be required to pay an additional $150. into the Contractor’s Recovery Fund, as authorized by A.R.S. ( 32-1132(B). Failure to pay such additional deposit into the fund shall result in rejection of the renewal application and suspension of Respondent’s license until payment be made and the renewal issued.

Set forth this 28th day of November in the year 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland 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 ___________________________

----------------------- [1] The contractor asserts that he has been inhibited from an attempt to address the issue by the homeowner’s unwillingness to cooperate and failure of the homeowner to facilitate access to the property. It is quite apparent that there exists significant animosity between the parties as is evinced by the necessity for issuance of civil restraining orders and injunctive relief in related pending matters. This complaint represents the fifth such complaint filed with the Registrar of Contractors by this homeowner against this contractor, involving this project. In addition, there is currently pending a matter in the Superior Court, Maricopa County, concerning which the Honorable Michael J. O’Melia instructed the parties via Minute Entry on October 19, 2000, in revealing part: “Counsel shall stop any personal ‘attacks’ and attempt to resolve this litigation.” [2] Complainant failed to present evidence of the cost of repair.

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