ALJDEC decisions subject to certification as final

05F-1194-ROC · Registrar of Contractors · 2007-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22, 2007. APPEARANCES: Sue Bloom appeared personally. Sunset Valleywide Roofing, Inc. was represented by its authorized employee, Melissa Laceby. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Sunset Valleywide Roofing, Inc. (“Respondent”) is the holder of License No. 089014, a Class C-42 contracting license issued by the Registrar of Contractors. 2. Respondent performed subcontracting work for Sue Bloom (“Complainant”) in 2004. Respondent constructed a second story walk deck and performed some roofing work. 3. On or about January 3, 2005, Complainant filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 4. In response to the filed complaint, the Registrar of Contractors’ assigned inspector, Warren Duncan, performed a jobsite inspection at Complainant’s residence on January 15, 2005. That inspection resulted in Inspector Duncan issuing a Corrective Work Order dated February 2, 2005. Respondent was required to timely perform remedial repairs to repair a roof leak causing damage to ceiling of the walk deck and to repair three areas of water damage below the walk deck. Respondent was not responsible for any roof tile repairs. 5. After issuing the Corrective Work Order, Inspector Duncan contacted Complainant to request access to her property to perform a water test of the walk deck. Having viewed evidence of water leaking from the ceiling fan and stereo speakers underneath the walk deck during the first inspection, he had second thoughts about the cause of the leaks. 6. On March 1, 2005, Inspector Duncan performed a second inspection, which included the water test of the walk deck. During the water test, Inspector Duncan observed significant leaking underneath the walk deck near a stereo speaker and a beam. The water test revealed no leaks on the shed roof and the skylight installed by Respondent. 7. By letter dated March 3, 2005, Inspector Duncan amended his Corrective Work Order based upon the water testing. He stated that he could not determine whether Respondent or installers of the floor tile and/or railing were responsible for the leaks. 8. On April 4, 2005, Inspector Duncan received a written addendum to the complaint from Complainant. Complainant declined a third jobsite inspection by Inspector Duncan. 9. As a result of Inspector Duncan’s March 3, 2005 amendment to his Corrective Work Order, Respondent was not required to perform any remedial repairs to the walk deck. 10. On March 8, 2007, Inspector Duncan performed a prehearing jobsite inspection. He observed that the shed roof tiles were properly secured. The inspector credibly testified that it is normal for the secured roof tiles to be able to be lifted by hand after installation. 11. Respondent’s president, Melissa Laceby, testified that Respondent had been paid in full for the walk deck, but has not been paid for its roof tile work. 12. Respondent did not install the tile on the walk deck. That work was performed by others. 13. Ms. Laceby, who personally worked on the installation of the Sunco walk deck, credibly testified that the walk deck was installed per manufacturer’s specifications. 14. Ms. Laceby testified that the door jam adjacent to the walk deck was moved after Respondent completed the walk deck by someone other than Respondent. The removal of the door jam impacted the integrity of the walk deck system. Ms. Lacey opined that the source of the leaking was the door jam after being relocated after Respondent completed the walk deck. 15. Joanna Peters, a consultant/friend of Complainant, testified that Complainant’s insurance carrier caused the damaged walk deck to be removed due to the presence of mold resulting from the leakage of the walk deck. 16. Respondent is found not to be responsible for the mold damage. 17. Respondent did not abandon Complainant’s project. 18. Respondent did not deviate from plans or specifications. 19. Respondent did not commit any wrongful or fraudulent act resulting in Complainant being substantially injured. 20. There is insufficient evidence that Respondent failed to complete its scope of work for the parties’ contract price. 21. There is insufficient evidence that Respondent violated any safety or labor laws. 22. As a result of Inspector Duncan’s March 3, 2005 amendment to his Corrective Work Order, Respondent was not required to perform any remedial repairs. 23. Respondent performed its work to minimum workmanship standards. 24. There is no evidence that Respondent failed to properly use its contracting license as required by statute.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record supports the conclusion that Complainant failed to sustain her burden of proof in this matter. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(1), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(2), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(9), as cited in the Citation and Complaint issued by the Registrar of Contractors. 8. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(12), as cited in the Citation and Complaint issued by the Registrar of Contractors. 9. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 10. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 11. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 3201124(B), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

The Citation and Complaint in Registrar of Contractors Case No. 05- 1194 is dismissed on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, April 11, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 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