ALJDEC

01F-M0233W-ROC · Registrar of Contractors · 2001-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2001 APPEARANCES: Complainant David Black was present with his wife, Louise Black. Respondent failed to appear, as explained more fully below. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________

The issue presented by this matter is whether Respondent Alcove Roofing, 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 Alcove Roofing, Inc. (“Alcove”) is the holder of a Class K-42 license (No. 149673) and a Class KB-02 license (No. 150258) issued by the Registrar of Contractors (“ROC”). Alcove assigned Mr. Duane Hiser, a repairman who occasionally does work for Alcove, but who is not a licensed contractor and who is not employed by Alcove, to represent Alcove during the administrative hearing of this matter. The undersigned Administrative Law Judge could not recognize Mr. Hiser’s appearance based upon the fact that he does not appear on either of Alcove’s licenses, nor is he an officer or principal of the corporation. The undersigned Administrative Law Judge afforded Mr. Hiser the opportunity to contact Alcove via telephone in order to have an authorized person represent Alcove at the hearing. Mr. Hiser’s attempt at reaching Alcove was unsuccessful. The hearing proceeded as scheduled without an appearance by Alcove. The story in this case begins not with Mr. Black, the Complainant, but with Mr. Black’s mother, Violet Secor. In September 1999, Ms. Secor lived in a home located at 10049 East Boise Street, Mesa, Arizona. That month, a severe storm broke several windows in Ms. Secor’s home, and also caused Ms. Secor’s ceiling to collapse. Ms. Secor filed a claim with her homeowner’s insurance company, American Equity Insurance Company (“American Equity”), which in turn assigned an adjuster to inspect the damage. The American Equity adjuster confirmed the broken windows, and some interior water damage that he attributed to wind-driven rain. The adjuster inspected Ms. Secor’s roof, and found no evidence of damage. American Equity evaluated Ms. Secor’s claim and determined that no coverage applied to the interior damage based upon the policy language. The adjuster’s estimate for the repair of the windows was $121.04, a cost below Ms. Secor’s $250.00 deductible. For reasons not made clear during the hearing, American Equity later issued a check to Ms. Secor in the amount of $2,692.58 for “supplemental property loss.” This amount included $1,905.00 as an estimated payment for repairs to Ms. Secor’s roof. There is no evidence in the record as to the nature of those repairs or the damage they were intended to remedy. Following her receipt of the payment from American Equity, Ms. Secor contracted with Alcove to have Alcove perform the roof repair. According to Mr. Black, Alcove agreed to repair the roof for the $1,905.00 American Equity cost estimate. On December 19, 1999, before Alcove performed the roof repairs, Ms. Secor passed away and Mr. Black inherited the home. Mr. Black decided to use his mother’s home as a rental property. Therefore, he contacted Alcove in order to follow through with the roof repair. Mr. Black did not have a copy of the original contract between his mother and Alcove. Therefore, he drafted his own agreement with Alcove, which Alcove’s Sales Supervisor, Rob Bauman, signed. The agreement is dated February 15, 2000, and states, “I agree to remove old roof completely and remove all debris. To lay new felt, dripedge, + new [unreadable] tab shingles (white,) to replace complete roof at 10049 E. Boise St, Mesa 85207. For the specified amount allotted by insurance adjuster due to the hail damage.” On February 15, 2000, Alcove removed and replaced the roof. Mr. Black contacted Alcove on July 13, 2000, claiming the roof was leaking. Mr. Black left a message for Alcove’s customer service representative to call him back. Mr. Black did not receive a return phone call, so he called Alcove once again on July 16, 2000, and left another message. Again, Mr. Black did not receive a return phone call from Alcove. Mr. Black testified that he attempted to contact Alcove on several subsequent dates, all to no avail. In a complaint to the ROC dated August 20, 2000, Mr. Black alleged deficiencies in the removal and replacement of the roof for which he believed Alcove was responsible. Mr. Black’s specific complaint allegations were “roof leaks - causing water damage in the bathroom, living room, kitchen, den and small bedroom.” After Mr. Black filed his complaint with the ROC, Alcove assigned a repairman, Duane Hiser, to address the problems. On or about October 7, 2000, Mr. Hiser attempted to repair the roof. Mr. Black testified that the repair consisted of caulking around the cooling unit. Mr. Hiser did not address the interior damage. On October 26, 2000, ROC Inspector Van Bagley conducted a jobsite inspection at the home. Mr. Black was present for that inspection; Alcove did not attend. On October 30, 2000, Inspector Bagley issued a Corrective Work Order (“CWO”) under which the ROC gave Alcove 15 days to repair the roof leaks and to “repair ceiling water damage in living room, kitchen, and bathroom ceiling.” The evidence was undisputed that as of the hearing date, Alcove had not performed any of the corrective work set forth in the CWO. At hearing, Inspector Bagley testified that the CWO was based solely on information supplied by Mr. Black. Inspector Bagley did not actually inspect the roof until May 7, 2001, when he conducted a prehearing inspection. Based on that inspection, Inspector Bagley concluded that the roof “looked good,” i.e., there were no holes or missing shingles, and there was caulking around the vents, penetrations, and the cooler. Inspector Bagley testified at hearing that based on his visual inspection, he did not see where the roof could be leaking. Regarding the interior damage, Inspector Bagley testified that he could not determine whether that damage was attributable to Alcove’s work. Mr. Black presented a videotape of the interior of his home that depicted water stains on trusses, dry rot and considerable drywall damage. However, Mr. Black failed to present any credible evidence that affirmatively established the presence of leaks in the roof of his home, or that such leaks have allowed water to penetrate, and damage, the interior of his home. CONCLUSIONS OF LAW In this proceeding, Mr. Black bears the burden to prove, by a preponderance of the evidence, that Alcove 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. 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). The Administrative Law Judge concludes that Mr. Black failed to sustain the required burden of proof. 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 Alcove 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. 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.” Mr. Black failed to sustain the required burden of proof as to each of the foregoing charges because he failed to present any credible evidence that affirmatively established the presence of leaks in the roof of his home, or that such leaks have allowed water to penetrate, and damage, the interior of his home. In the absence of such evidence, Mr. Black failed to establish a violation by Alcove of either A.R.S. § 32-1154(A)(3) or (A)(7). 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” (in this case, the CWO). Mr. Black failed to sustain the required burden of proof as to this charge because under the evidence presented, insufficient factual justification existed to support Inspector Bagley’s directives as set forth in the CWO. Inspector Bagley admitted that he did not view the roof at the initial jobsite inspection. The evidence presented at hearing suggested that if he had done so, he would have concluded that the roof was not properly subject to corrective work. Further, because the alleged damage to the interior of the home could only be attributable to Alcove if it was shown that Alcove was responsible for leaks in the roof, the absence of such evidence compels the conclusion that insufficient basis existed for Inspector Bagley to have ordered Alcove to repair that damage. Because Mr. Black failed to prove that Alcove violated this State’s contracting laws, it is inappropriate for the ROC to impose discipline against Alcove’s license. . . . RECOMMENDED ORDER In view of the foregoing, it is recommended that Citation Numbers M01- 0233 and M01-0233W, together with the complaint upon which they are based, be closed.

Done this day, May 21, 2001.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Michael P. Goldwater, Director 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