ALJDEC

00F-P0119-ROC · Registrar of Contractors · 2000-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On May 22, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Antoinette Chavez-Alba appeared on her own behalf. Craig Lloyd and Brad Ziegler appeared on behalf of the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Antoinette Chavez-Alba (the “Complainant”) is the owner of a home (the “Home”) located at 107 S. Highway 180, Springerville, Arizona. Craig Lloyd is the Respondent’s Managing Member. Brad Ziegler is the Respondent’s Qualifying Party and Member.

2. The Complainant is the owner of a restaurant. In July of 1999, she met with Mr. Ziegler at the restaurant to discuss a bid for the construction of a seven car garage at the restaurant. Mr. Ziegler offered a business card to the Complainant showing the Respondent’s name, address, phone number and license number. Mr. Ziegler submitted a bid that was accepted by the Complainant. The garage project was scheduled for completion in five weeks. The contract was for $46,000.00. The contract was verbal.

3. The Complainant testified that the roof of her Home was leaking in July of 1999. The Complainant testified that she desired to install a metal roof on her Home. The Complainant testified that she spoke to Mr. Ziegler while he was working on the garage project. The Complainant testified that Mr. Ziegler agreed to install the metal roof at the Home for $3,100.00. Once again, this contract (the “Roofing Contract”) was verbal. The Complainant testified that she assumed that Mr. Ziegler entered into the Roofing Contract on behalf of the Respondent. The Complainant further testified that she assumed that the Respondent was properly licensed to install the metal roof at the Home.

4. Mr. Ziegler testified that he offered the Respondent’s business card to the Complainant prior to entering into the garage project. Mr. Ziegler testified that he had the authority to bid on behalf of the Respondent regarding the garage project. Mr. Ziegler testified that he began working on the garage project in July of 1999. Mr. Ziegler testified that he spoke to the Complainant in August of 1999, and he agreed to install the metal roof at the Complainant’s Home. However, Mr. Ziegler testified that this was just a side project for cash between the Complainant and himself. Mr. Ziegler testified that he was not acting on behalf of the Respondent. Mr. Ziegler conceded that he was not properly licensed to install the metal roof at the Complainant’s Home. Mr. Ziegler testified that he needed some extra money because he had a baby on the way.

5. The Complainant testified that Mr. Ziegler promised to complete the roofing project at the Complainant’s Home in 3 or 4 days. The Complainant testified that the roofing project was substantially completed on August 5, 1999. However, the Complainant testified that Mr. Ziegler informed her that he would have to return at a later date to tighten some of the stitch screws in the metal roofing.

6. Mr. Ziegler testified that he did not have enough stitch screws to complete the roofing project. Mr. Ziegler testified that it takes over a month to order and receive the stitch screws. Mr. Ziegler testified that he promised to return to the Home to complete the roofing project when he received the stitch screws.

7. The Complainant testified that the Home’s roof began leaking into her bedroom in September of 1999. However, the undersigned Administrative Law Judge finds it curious that the Complainant never mentioned that the roof was leaking in her Complaint, dated December 8, 1999, or her attached letter to the Complaint. The Complainant only wrote that the Home’s roof appeared to be incomplete because Mr. Ziegler used the wrong screw pattern. Id. The Complainant also never mentioned the leaking roof in an itemized complaint form, dated December 21, 1999, that was submitted to the Registrar of Contractors (“ROC”). See FL14 Attachment, dated December 21, 1999. Furthermore, Bernie St. John, the ROC Inspector, never mentioned a leaking roof in his notes. He also never included the repair of the inside ceiling in his Corrective Work Order (“CWO”), dated December 21, 1999.

8. The Complainant testified that she repeatedly attempted to contact Mr. Ziegler about returning to the Home to complete the installation of the metal roof. However, the Complainant testified that Mr. Ziegler was always too busy working on other projects. Mr. Ziegler testified that he could not complete the installation of the metal roof without the stitch screws.

9. The Complainant testified that she was having problems with Mr. Ziegler on the garage project at the restaurant in November of 1999. The Complainant testified that she went to the Registrar of Contractors to file a complaint regarding the garage project. The Complainant testified that she then learned that Mr. Ziegler and the Respondent were not licensed to build the garage or to install the metal roof at the Complainant’s Home. The Complainant testified that she fired Mr. Ziegler and the Respondent in November of 1999.

10. The Complainant testified that she spoke to three individuals who worked with Mr. Ziegler on her Home’s roof. The Complainant testified that she learned from these three individuals that the metal roof was incorrectly installed. The Complainant testified that the three individuals accompanied her to the Home to inspect the Home’s roof. The Complainant testified that these three individuals determined that the roof was poorly installed.

11. On or about December 8, 1999, the Complainant filed a Complaint with the Registrar of Contractors. On or about December 14, 1999, ROC Inspector St. John scheduled a jobsite inspection at the Home for December 21, 1999. The Respondent failed to appear for the jobsite inspection. On or about December 23, 1999, Inspector St. John prepared a Report of Inspection that stated the following:

Observing the roof installation, there were many areas where improper

installation was performed not meeting minimum workmanship standards or industry standards. . . . This contractor was working out of scope. He is licensed as a general but doesn’t have a proper C-42 residential roofing license. We are also citing for working out of scope. Any and all corrections are to be performed by a properly licensed contractor.

See Report of Inspection, dated December 23, 1999.

12. On or about December 21, 1999, Inspector St. John issued a CWO to the Respondent requiring that the Respondent correct all items listed in the Complaint. Inspector St. John further directed that the Respondent hire a properly licensed contractor to perform the corrective work. The items requiring corrective work included the following: a. No stitch screws were installed or used; b. shingles visible; c. vents and valleys of roof packed with caulking; d. angle metal shoved in places with no purpose at all against the weather; e. no metal put around eves as requested along with rain gutters to match. See CWO, dated December 21, 1999; see FL14 Attachment, dated December 21, 1999.

13. Inspector St. John retired after issuing the CWO in this matter. Inspector Warren Duncan performed the pre-hearing inspection. ROC Inspector Duncan testified that he was unable to climb up on the Home’s roof because he did not have a ladder. However, Inspector Duncan testified that he was able to partially view the Home’s roof from a stepladder. Inspector Duncan was also able to view photographs of the Home’s roof submitted by the Complainant. Inspector Duncan also reviewed the manufacturer’s specifications for the installation of the metal roof.

14. Inspector Duncan testified that the Respondent did not follow the manufacturer’s specifications. Inspector Duncan testified that the stitch screws should have been placed at the base of the ribs of the panels pursuant to the manufacturer’s specifications. Inspector Duncan testified that the Respondent placed some of the stitch screws too far from the base of the ribs.

15. Inspector Duncan testified that there were some parts of shingles showing from underneath the metal panels along the valley flashing of the Home’s roof. Inspector Duncan testified that aesthetically the panels should cover the underlying shingles along the valley flashing. However, Inspector Duncan testified that the visible shingles under the metal panels were within industry standards as long as the underlying flashing was sufficiently wide enough under the shingles and metal panels to catch the water running off the metal panels.

16. Inspector Duncan testified that the caulk on the Home’s roof was applied in a sloppy manner and was not aesthetically pleasing. Inspector Duncan testified that the caulk did not match the color of the metal roof. However, Inspector Duncan testified that the caulk would meet industry standards assuming that it prevented the rain from leaking into the Home.

17. The Complainant had also complained about “angle metal shoved in places with no purpose at all against the weather.” See FL14 Attachment. Inspector Duncan testified that this item was not clear to him. Inspector Duncan speculated that this item was simply the valley flashing appearing at the intersection of the metal plates.

18. Inspector Duncan testified that there was no metal covering the Home’s facie and there were no eaves or rain gutters installed at the Home. The Complainant testified that the Respondent was required to install the eaves and the metal over the facie pursuant to the verbal Roofing Contract. Mr. Ziegler testified that this was not part of the Roofing Contract. Mr. Ziegler submitted a receipt (dated August 5, 1999) showing that the eaves, gutters and facie metal were not included in the materials purchased for the roofing project. The undersigned Administrative Law Judge finds that the eaves and facie metal and rain gutters were not part of the verbal Roofing Contract. The Complainant is a successful businesswoman. She should have included these items in a written contract.

19. Mr. Lloyd testified that the Complainant and the Respondent never entered into a contract to install the metal roof at the Complainant’s Home. Mr. Lloyd testified that there is no written contract between the Respondent and the Complainant. Mr. Lloyd testified that Mr. Ziegler entered into an oral contract “on the side” with the Complainant to make some extra cash.

20. Mr. Lloyd testified that he contacted the Complainant to inspect the Home’s roof after receiving the CWO. Mr. Lloyd testified that the Complainant refused to allow him access to the Home’s roof. Mr. Lloyd testified that he asked the Complainant to provide the names of suitable roofing contractors in the Springerville, Arizona area who could inspect and correct the problems with the Home’s roof. Mr. Lloyd testified that the Complainant also refused this request.

21. The undersigned Administrative Law Judge finds that Mr. Ziegler was acting as the Respondent’s agent when he entered into the verbal Roofing Contract with the Complainant. The undersigned Administrative Law Judge finds that Mr. Ziegler and the Respondent failed to properly install the roof on the Complainant’s Home. The undersigned Administrative Law Judge finds that Mr. Ziegler and the Respondent failed to properly perform the following: a. Improper installation of the stitch screws; b. Improper caulking; and c. Shingles improperly showing from underneath the metal panels along the valley flashing of the Home’s roof.

22. The undersigned Administrative Law Judge finds that the Respondent’s failure to properly install the metal roof at the Complainant’s Home was a wrongful act that resulted in the Complainant being substantially injured.

23. The undersigned Administrative Law Judge finds that the Respondent knowingly contracted outside the scope of its Class B license by entering into the Roofing Contract which required a C-42 residential roofing license.

24. The undersigned Administrative Law Judge finds that the Respondent attempted to correct the items listed in the CWO. However, the undersigned Administrative Law Judge finds that the Complainant denied access to the Respondent (or a properly licensed contractor). CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that Mr. Ziegler was acting as an agent for the Respondent when he entered into the verbal Roofing Contract with the Complainant. Mr. Ziegler had a duty to clearly inform the Complainant that he was not acting on behalf of the Respondent when he entered into the Roofing Contract. Mr. Ziegler failed in this respect. Accordingly, the undersigned Administrative Law Judge concludes that the Respondent is legally bound by the terms of the verbal Roofing Contract.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #21. The Respondent failed to perform in a professional and workmanlike manner when it improperly installed the metal roof at the Home. The Respondent’s failure demonstrated poor workmanship.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #22.

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(17) as set forth in Findings of Fact #23.

6. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #24. RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Order entered in this matter (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class B license be suspended until the Registrar receives proof that the Respondent has caused a properly licensed contractor to perform the following corrective work: a. Properly install the stitch screws according to the manufacturer’s specifications; b. Remove excessive caulk and ensure that remaining caulk performs satisfactorily; and c. Properly install the metal panels so that the underlying shingles do not appear along the valley flashing of the Home’s roof.

It is further recommended that if Respondent causes a properly licensed contractor to perform the remedial work on or before the Order’s effective date, then no license suspension shall be imposed.

It is further recommended, in addition to the above-provided penalties, if any, that as an express condition for the next two renewals of the Respondent’s license, notwithstanding the existence or absence of any uniform assessment by the Registrar then in effect, that the Respondent shall be required to pay an additional $150.00 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 the rejection of any renewal application and a suspension of the Respondent’s license until payment is made and the renewal issued. Done this day, June 6, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Michael P. Goldwater Registrar of Contractors 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