ALJDEC

01F-H0220-ROC · Registrar of Contractors · 2001-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2001 APPEARANCES: Barbara Marisnick appeared on behalf of Complainants. Respondent Cunningham Construction Co. Inc. appeared through its qualifying party, Eugene Cunningham. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this matter is whether Respondent Cunningham Construction Co. Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Cunningham Construction Co. Inc. (“Cunningham”) is the holder of a Class C-05 license (No. 156711) issued by the Registrar of Contractors (“ROC”). Eugene “Gene” Cunningham is Cunningham’s qualifying party. Between late 1999 and early 2000 (the record is not clear as to precisely when), Cunningham installed a roofing system over an addition at Complainant Ray and Barbara Marisnick’s (the “Marisnicks”) home in Golden Valley, Arizona. The roofing system that Cunningham used at the Marisnicks' home is a modified bitumen roll roofing product called Flintlastic GTA (“Flintlastic”). Flintlastic is manufactured by CertainTeed. Flintlastic is a “torch application” material, meaning that its adhesive properties derive from its undersurface being heated with a torch prior to being applied to the underlying substrate. The Marisnicks were not satisfied with Cunningham’s workmanship on their roof. Subsequent disputes with Cunningham led the Marisnicks to file, on two separate occasions, complaints against Cunningham with the ROC. The Marisnicks' First Complaint Against Cunningham On April 7, 2000, the Marisnicks filed their first complaint against Cunningham with the ROC. In that complaint, the Marisnicks alleged that Cunningham had improperly installed their roofing system. In December 2000, Administrative Law Judge Kay A. Abramsohn held an administrative hearing on the Marisnicks' April 7, 2000 complaint. Following the conclusion of that hearing, Judge Abramsohn issued a recommended decision in which she concluded that “Complainants’ evidence was insufficient to show inferior, defective, or incorrect installation of the rolled roofing material.” The ROC adopted Judge Abramsohn’s Recommended Decision by Order dated January 11, 2001, and the Marisnicks did not appeal that decision. The Marisnicks' Second Complaint Against Cunningham On April 24, 2001, the Marisnicks filed a second complaint against Cunningham with the ROC. It was this second complaint that gave rise to the hearing in the instant matter. In their April 24, 2001 complaint, the Marisnicks alleged “Henry’s material used to patch seams and leaks is cracking, bubbling and pulling away from roofing material.” The patch work referred to in the Marisnicks’ April 24, 2001 complaint is work that Cunningham performed in March 2000. The hearing testimony of Cunningham employee Doug Koepping established that at this time, Mr. Koepping repaired a leak along a seam in the Marisnicks’ roof that had not been sealed down tightly enough, and further that Mr. Koepping had sealed additional seam lines in the Marisnicks’ roof where Cunningham had applied the Flintlastic system. In making the aforementioned repairs, Mr. Koepping used a product known as Henry roof cement. Henry roof cement is a commonly used roofing cement. CertainTeed’s technical specifications for Flintlastic [Exhibit 3] state “FLINTLASTIC GTA is intended for torch application only and should not be exposed to adhesives or solvent base materials.” Henry roof cement is a solvent base material. The Administrative Law Judge finds that by using Henry roof cement on the Marisnicks' roof, Cunningham materially deviated from the manufacturer’s specifications. ROC Inspector Bill Redman investigated the Marisnicks’ complaint. On May 9, 2001, Inspector Redman conducted a jobsite inspection at the Marisnicks’ residence. During that inspection, Inspector Redman found numerous areas on the Marisnicks’ roof where the roof material was loose and lifting from the plywood decking. Inspector Redman further observed numerous cracks along the roofing material seams in addition to significant bubbling underneath the roofing material. At hearing, Inspector Redman credibly testified that between May 2000, when he first inspected the Marisnicks' roof in connection with their first complaint, and May 2001, when he inspected the roof in connection with their second complaint, there had been a “drastic” change in the condition of the roof. On May 10, 2001, Inspector Redman issued a Corrective Work Order (“CWO”) under which the ROC gave Cunningham 15 days to complete the following corrective work: The roof over the rear addition must be repaired to meet manufacturer’s requirements. The following items must be repaired: 1. All seams to be repaired. 2. All bubbles to be tight to the plywood deck. 3. All loose areas to be replaced per manufacturer’s requirements.

The manufacturer states no adhesives or solvent based materials are to be used with this type of roof material. If the roof cannot be repaired per manufacturer’s requirements a new roof must be installed.

All work to be performed by a CertainTeed approved contractor.

Following the issuance of the CWO, Cunningham arranged for Advanced Roofing Systems Inc. (“Advanced”) to conduct an inspection of the roofing on the Marisnicks’ addition. Advanced conducted the aforementioned investigation on or about May 22, 2001. Following the completion of its inspection, Advanced issued a report [Exhibit 4] in which it made the following findings: 1) Not torched down tight to plywood 2) Repair work can not be repaired to manufactures [sic] requirement or home owners requirements 3) Existing roof needs to be re-done

Cunningham disagreed with Advanced’s findings, and took no further action to effect any repairs to the Marisnicks’ roof or otherwise comply with the directives set forth in the CWO. At hearing, Gene Cunningham testified that in his opinion, the Marisnicks’ roof was properly constructed, and Cunningham therefore was not obligated to perform any further work. Inspector Redman disagreed with Mr. Cunningham’s assessment, testifying that Cunningham had not properly installed the roofing system, nor had Cunningham effected appropriate repairs to the roof. The weight of the credible evidence presented at hearing demonstrated that Cunningham failed to comply with the manufacturer’s specifications for the Flintlastic roofing system when it sealed the roof’s seams with Henry roof cement. At hearing, Cunningham explained that it was not aware of the manufacturer specification proscribing the use of adhesive or solvent base material, and further that its supplier was similarly unaware of this proscription. The Administrative Law Judge found Cunningham’s evidence as to its lack of knowledge to be credible, but not exculpatory. When Cunningham agreed to apply the Flintlastic roofing system to the Marisnicks’ home, it assumed the obligation to perform that work, including any subsequent repairs, in accordance with the manufacturer’s specifications. Cunningham’s lack of knowledge regarding those specifications does not excuse it from that obligation. The weight of the credible evidence demonstrated that Cunningham’s repair work on the Marisnicks’ roof did not meet the ROC’s minimum workmanship standards applicable to licensed contractors in the State of Arizona (the “ROC’s minimum workmanship standards”), in that such repairs not only failed to comply with the manufacturer’s specifications, but also failed to seal the seams of the Marisnicks’ roof. The weight of the credible evidence demonstrated that Cunningham’s initial installation of the Marisnicks’ roof did not comply with the ROC’s minimum workmanship standards. In this regard, the Administrative Law Judge found Inspector Redman’s testimony to be the most credible and most probative evidence. According to Inspector Redman, the roofing material was not properly adhered to the plywood underlayment, and the roofing system did not lie flat or tight on the roof as it should.[1] The weight of the credible evidence demonstrated that Cunningham failed to comply with the CWO. Based on the findings set forth above, Cunningham was not justified in that failure. At hearing, Cunningham urged that the Marisnicks had themselves performed work on their roof, including the application of Henry roof cement, and further that the Marisnicks had created certain of the deficiencies identified by Inspector Redman by pulling up seams on their roof. Cunningham argued that the Marisnicks’ actions in this regard relieved Cunningham of any further responsibility for its workmanship. The evidence corroborated Cunningham’s claims that the Marisnicks had themselves applied Henry roof cement to their roof, and that the Marisnicks had to some extent pulled up seams in their roof. This conduct does not, however, relieve Cunningham from responsibility for its workmanship. First, the Marisnicks' use of Henry roof cement only duplicated Cunningham’s application of Henry roof cement, and thus did not interfere with the roofing system to any greater extent than did Cunningham’s use of that material. Second, to the extent that the Marisnicks were able to pull up the Flintlastic along the seams, they were only able to do so because of Cunningham’s improper application of that material in the first instance. Upon consideration of all of the evidence presented, including the findings of Advanced, the contractor hired by Cunningham to evaluate the Marisnicks’ roof, the Administrative Law Judge finds that repair is not an appropriate option and that the Marisnicks’ roof must be removed and replaced. At hearing, the Marisnicks requested that A-2-Z Roofing & Supply Co., Inc. (“A-2-Z”) be the contractor designated to perform that removal and replacement. On June 21, 2001, the ROC issued a Citation and Complaint charging Cunningham with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action in response to a written directive from the ROC), and (A)(3) (violation of any rule adopted by the ROC, in this case, Rule R4-9-108 covering workmanship standards). CONCLUSIONS OF LAW In this proceeding, the Marisnicks bear the burden to prove, by a preponderance of the evidence, that Cunningham is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its June 21, 2001 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). As a preliminary matter, the Administrative Law Judge addresses the issue of Cunningham’s workmanship apart from the patch work that gave rise to the Marisnicks' second complaint. Ordinarily, a party is not afforded an opportunity to re-litigate an issue once that issue has been decided adversely to that party. Thus, some argument can be made that because the ROC previously determined that the Marisnicks had failed to establish improper installation of their roofing system in connection with their first complaint (see Findings of Fact Nos. and 8), that issue cannot be addressed in the instant case. However, for two reasons, the Administrative Law Judge concludes that consideration of Cunningham’s overall workmanship is both necessary and appropriate. First, the CWO in this matter expressly addressed corrective work that extended to the entire roofing system, and not simply the patch work that Cunningham performed in March 2000. Thus, in determining compliance with that CWO, it is necessary to consider the whole of Cunningham’s work. Second, ROC Inspector Bill Redman, who investigated both the Marisnicks’ April 7, 2000 complaint and the Marisnicks’ April 24, 2001 complaint, credibly testified at hearing that there had been a “drastic” change in the condition of the Marisnicks’ roof since his original inspection. Thus, the evidence demonstrates a change in circumstances that renders the ROC’s prior determination inapplicable. Based on these grounds, the Administrative Law Judge concludes that the previous decision in this matter does not bar a determination being rendered in the instant case. As to the specific charges raised in the ROC’s June 21, 2001 Citation and Complaint, the Administrative Law Judge concludes that the Marisnicks met their burden of proof as to all of those charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Cunningham with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The weight of the credible evidence presented at hearing, primarily the testimony of Inspector Redman, demonstrated that Cunningham’s workmanship at the Marisnicks' residence failed to meet the ROC’s minimum workmanship standards. Therefore, the Marisnicks proved by a preponderance of the evidence that Cunningham violated A.A.C. R4-9-108, and in turn that Cunningham violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” The Administrative Law Judge concludes, from the evidence presented, that Cunningham failed to comply with the ROC’s May 10, 2001 CWO, and that no valid justification exists for that failure. Therefore, Cunningham violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Cunningham committed several wrongful acts that substantially injured the Marisnicks, including (1) failing to perform its work at the Marisnicks' home in accordance with the ROC’s minimum workmanship standards, and (2) failing to comply with a written directive of the ROC to correct that work. Therefore, Cunningham violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Cunningham’s license. The ROC’s June 21, 2001 Citation and Complaint advised Cunningham that in the event of a finding of a violation against it, Cunningham’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Cunningham in the ROC’s official records. Those records revealed that Cunningham’s C-05 license has not been the subject of any ROC disciplinary orders within the past two years. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that Cunningham’s license should be suspended. The Administrative Law Judge further concludes, however, that such suspension should be conditional and that Cunningham should be given the opportunity to avoid suspension by removing and replacing the roofing system over the addition at the Marisnicks' home. In the event that Cunningham seeks to avoid suspension of its license through completion of the above referenced corrective work, Cunningham shall cause such work to be performed in accordance with CertainTeed’s specifications by a properly licensed contractor approved by CertainTeed to install the Flintlastic roofing system. Although the Marisnicks requested that that A-2-Z be the contractor designated to perform that removal and replacement, the Administrative Law Judge concludes that Cunningham, as the party responsible for ensuring performance of the corrective work, must be given discretion in the selection of the contractor that will perform the work.

RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Commencing twenty (20) days after the effective date of the Order entered in this matter, Cunningham’s Class C-05 license shall be suspended until the ROC receives written proof that Cunningham has caused the roofing system over the addition at the Marisnicks' home to be removed and replaced with a new Flintlastic roofing system in accordance with CertainTeed’s specifications by a properly licensed contractor approved by CertainTeed to install Flintlastic. If the ROC receives written proof that Cunningham has complied with the foregoing condition on or before the deadline identified above, then the above provided license suspension shall not take place and the ROC’s June 21, 2001 Citation and Complaint shall be closed. If the ROC receives proof that Cunningham has complied with the foregoing condition after the deadline identified above, then the above provided license suspension shall be lifted.

Done this day, November 13, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________ ----------------------- [1] Additional to Inspector Redman’s testimony, the Marisnicks offered evidence that Cunningham had failed to install a required underlayment prior to applying the Flintlastic roofing system. At hearing, Cunningham argued that this issue had previously been determined against the Marisnicks (i.e., in the hearing before Judge Abramsohn), and therefore could not be raised again. The Administrative Law Judge took official notice of Judge Abramsohn’s decision in that case as adopted by the ROC, and finds that Cunningham is correct. Judge Abramsohn found against the Marisnicks on this issue, and they are therefore barred from re-litigating it. As to the other evidence of Cunningham’s workmanship, however, the Administrative Law Judge finds, for the reasons set forth in Conclusion of Law No. 3, that such evidence is admissible and may be considered in the determination of this matter.

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