ALJDEC

00F-H0228-ROC · Registrar of Contractors · 2000-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2000 APPEARANCES: Barbara Marisnick appeared for Complainants, representing Complainants. Eugene Cunningham appeared, representing Respondent. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent was a contractor for two room additions, a porch and a new garage at Complainants’ residence in Golden Valley, Arizona. The contracts for this work were executed in September 1999. At the time, Respondent was the holder of a Class B- license issued by the Registrar. 2. On April 7, 2000, Complainants filed a formal complaint with the Registrar against Respondent. Complainants’ original complaint in this matter stated several combined complaints: 1) that they did not see any underpaper on the garage [composition shingle] roof and there was no metal channel where the (garage) roof met the flat roof; and, 2) that there was no underpaper on the rolled roofing on the addition’s flat roof, and the rolled roofing was not tacked down against the existing roof nor applied far enough under the existing roof nor was it applied by a properly licensed roofer. Complainants indicate that they have had a large leak and several patch repairs were made by Respondent where seams were coming loose and not completely sealed. 3. As a result of receiving the complaint, the Registrar’s Inspector scheduled a site inspection [April 28, 2000]. The Inspector determined that the Class B license did not permit the application of torch-down roofing material. The Inspector determined that there were some workmanship issues, and on May 3, 2000, the Inspector issued Registrar’s Corrective Work Order (CWO). The CWO indicates that Respondent was to have a properly licensed contractor apply the torch-down roofing on the addition, and that a layer of non-perforated 15 pounds felt was required under shingles. The CWO calls for Respondent to make these repairs within fifteen days. 4. Respondent made no additional corrective work at Complainants’ home but advised Registrar’s Inspector that he was going to be out of the country for the last two weeks in May. 5. The matter was not resolved, and Complainants requested a hearing.

6. On July 27, 2000, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.17, 32-1154.A.23, and 32-1154.A.3, specifying Arizona Administrative Code (A.A.C.) R4-9-108. 7. On July 31, 2000, Respondent’s office manager filed a letter to the Registrar indicating that Mr. Cunningham was on vacation until August 8th, and she would give him the Citation on his return. On August 15, 2000, the Registrar received Respondent’s written answer. Overall, Respondent’s answer indicates that there is felt paper under the shingles on the garage, and that the roof was in good order and that the Inspector had said that he could see nothing wrong with the roof. 8. At the hearing, Complainant’s position is that she believes the rolled roofing was applied incorrectly and not in compliance with manufacturer’s specifications. Complainant testified that after the major leak and after Respondent had repaired the leak, they happened to be up on the roof and saw some other areas where the roofing was not “down”, and that is when they decided to do some research about the roofing material. Complainant testified that she asked the supplier [True Value, from Julio at Advanced Roofing] about the roofing material used and he had stated that it was GenStarr [now CertainTeed] material. Complainant pulled 26 pages of information about the product off the Internet, and supplied it to the hearing record. 9. Complainant testified that the manufacturer and two other roofers who looked at the roof said that there needed to be underlayment on the torch-down roofing. Complainant testified that a membrane on the rolled roofing material, which was supposed to have been torched off was still on the roofing material in at least one area, and they really question how much more of the roof [the new additions and porch area] was not done right. Complainant argued that patches were supposed to be reheated per the manufacturer specifications, but the workers had only put it back down with Henry’s wet-dry patch (tar). Complainant argued that the seams are supposed to show material “oozing” or coming out all along the seams to indicate a good bond, and that it isn’t “oozing” out along the seams. Complainant argued that when the material is rolled out for application, the seams are not to be lined up with each other (as was done) but the seams are to be offset per the manufacturer. Complainant argued that the people who put on the roofing were inexperienced, this being their first such roofing material job, and that an applicator of such material is required to be very experienced per the manufacturer. Complainant argued that where the roofing meets the shingles, the roofing material is not far enough [was to be 4 inch overlap, and a 6 inch overlap at the end (seams?) of adjoining rolls] under the shingles per the two other contractors’ opinions and that the shingles are not tacked down all the way across the union. Complainant argued that, per the manufacturer, the roof was to have a different metal edge over the roofing material and at the corners, and that there were to be expansion joints for the additions and at adjoining roofs. 10. Complainants are requesting an entire new roof and want monetary compensation to take care of this now existing roof. Complainant testified that the two other roofers they consulted indicated that the now existing roof would make a good base for another type of roof, such as foam. 11. Respondent testified that the roofing was installed on Complainants’ home just as the same material had been installed on his own roof, and that his workers were more than capable of taking direction in the appropriate application. Respondent testified that you can’t put felt under the rolled material because when you torch it down, the felt can catch on fire before the rubber is melted down. Respondent testified that the tar was force on/in a quarter inch or so at the ends to be sure the roof was good, and that you don’t want tar ”oozing“ out because it looks bad and then gets tracked all over the roof. Respondent testified that there was a 3 inch head lap for this material at the shingle union whereas a shingle head lap is only 2 inches. Respondent testified that he thought the material used was Johns Mansville material, but that all manufacturer’s specifications are really guidelines to protect the manufacturer. Respondent’s position is that the roof was repaired after the leak, is not leaking now, and the Inspector had agreed that the roof was fine. 12. Respondent testified that he had been in business for 35 years, and that the Registrar had degraded his license but he had not been notified that license no longer covered roofing. At the time of the contract and the work, Respondent believed his license covered that work. Respondent now has a C-05 License No. 156711 for rolled roofing (issued July 3, 2000). 13. The Registrar’s Inspector testified that the last time he saw the roof [the pre-hearing inspection], the roof was in good condition, there were no leaks or shingles off the roof, and there was no lifting of the torch-down material - overall, the roof appears to be okay on the surface, and there was no way to determine some of these concerns without destruction to the roof. The Inspector testified that Complainant had agreed that there were no leaks after the repairs. The Inspector testified that the manufacturer’s information did not require “felt” under the torch- down material, but did call for a “slip sheet”. The Inspector testified that, while Johns Mansville material required one-ply sheeting over wood decks (and under its material), that the one-ply sheeting was not required over plywood. The Inspector testified that metal flashing [the metal channel referred to by Complainant] is not needed in the roof valley if the paper and shingles are properly in place. The Inspector testified that, according to his notes, the head laps were 4 inches plus. The inspector testified that once the shingles are sealed, the seal is fully effective and they can’t be pried apart without invasive procedures. 14. The Registrar’s Inspector testified that Respondent had thought, at the time of the contract and the work, that his license let him do that roofing work, and that he had since obtained the appropriate license. The Inspector testified that it was his understanding that the Registrar had issued the license without a test in the area, inferring that the Registrar believed that Respondent already had the skills and/or knowledge necessary for the roofing license. APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: … 3. Violation of any rule adopted by the Registrar; specifically Arizona Administrative Code (A.A.C.) R4-9-108[1]. … xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … xxx 17. Knowingly contracting beyond the scope of the license… xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar... .

Additionally, A.R.S. §32-1154.D provides that Registrar may impose on a contractor a civil penalty not to exceed five hundred dollars for each violation of A.R.S. §32-1154.A.23, i.e., for each failure to take appropriate corrective action after receiving a written directive from Registrar. . CONCLUSIONS OF LAW 1. The hearing testimony showed the roofing installed by Respondent to be in good working order, with no leaks and with no visible problems. Respondent had repaired leaks and seam problems which had occurred prior to the Complainant’s filed complaint. Complainants believe the rolled roofing installation to be inferior, defective and/or incorrect, however, Complainants’ evidence was insufficient to show inferior, defective, or incorrect installation of the rolled roofing material. Complainants believe the shingle roofing installation to be inferior (alleging no felt was used), however, Complainants’ evidence was insufficient to show there was no felt underlayment to the shingled area. The evidence and testimony at the hearing established no violation, by Respondent, of A.R.S. §§32- 1154.A.7. 32-1154.A.23, 32-1154.A.3 or A.A.C. 4-9-108 by Respondent is shown. 2. While there was a technical violation of A.R.S. §32-1154.A.17 at the time of the contract and work, Respondent is now appropriately licensed. If there were corrective work to be performed at this time, Respondent would be allowed to perform that work, or Respondent could cause corrective work to be completed by another properly licensed contractor. The issuance of the appropriate roofing C-05 license to Respondent by the Registrar carries with it the Registrar’s assurance that Respondent, in fact, has the requisite skill and knowledge to perform such roofing work. The Registrar’s issuance of the Class C-05 license is a mitigating factor in determining whether to impose discipline on Registrar’s Class B License. It is determined that no discipline be imposed for this past technical violation. RECOMMENDED ORDER In view of the foregoing, based on finding no violations, it is recommended that this Registrar’s Citation No. H00-0228, together with the Complaint on which it is based, be dismissed and the case be closed. RECOMMENDED this day, December 28, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of December, 2000 to:

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

By ___________________________ ----------------------- [1] A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827