ALJDEC decisions subject to certification as final

06F-2063-ROC · Registrar of Contractors · 2007-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2007 APPEARANCES: Complainant was represented by its attorney, Fred Gamble and Respondent was represented by its attorney, Roger Brodman. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant is the owner of a Comfort Inn. Sometime after leasing out a portion of the hotel to Nextel and allowing Nextel to accomplish specified remodel work to accommodate the installation of their cell tower, a water leak developed, causing damage to the balcony in room 213 and the breakfast area in the main lobby of the hotel. Although Respondent was not involved in the initial remodel work on the installation of the cell tower, it was hired by Nextel to perform specified remedial work on the water damage. Complainant alleges that Respondent’s responsibilities included making sure that the water leakage was terminated. This issue is discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Sam Trevedi (“Sam”) is the owner or principal of Complainant. He appeared at the instant hearing and provided testimony. b. Sam testified that he had no water leaks until the time that the cell tower was installed by Nextel. The balcony for room 213 is directly above the breakfast area on the first floor of the hotel. c. A company which was described as Charles Taylor (“Taylor”), acted as the general contractor for the installation of the cell tower for Nextel. According to Sam, shortly after the work was accomplished by Taylor, the first water penetration was experienced inside the hotel. Sam testified that the water penetration was found to be attributable to work that Taylor performed on the chimney area of the hotel and remedial work was performed on the chimney area, either by Taylor or others hired by Taylor. d. Subsequent to the remedial work on the chimney area of the building, Nextel hired Respondent to perform specified work on the water damage issue. e. Respondent first came on the scene in November 2004. After meeting on the scene with several parties, Respondent was advised that the leaks had been stopped and Respondent prepared a proposal for what it was going to do. Among other things, it was going to replace the water damaged drywall and item no. 4 on the proposal indicates that Respondent was to “meet and supervise Dave at Roof USA to arrange for the installation of a new drain in the southwest corner of the epoxy deck, keeping Roof USA Epoxy warranties in place.” f. Larry Farmer (“Farmer”), Respondent’s operations officer appeared at the hearing and provided testimony. He contends that Roof USA was never the subcontractor of Respondent and that Respondent was only directed by Nextel to take steps to get Roof USA back out to the jobsite to correct the problems with their epoxy deck on the balcony of room 213. Respondent had run a transit on the deck and observed that there was not enough slope to the deck. Thus, they recommended to Roof USA that they replace the deck. Contrary to Respondent’s recommendation, Roof USA installed a drain in the deck. Roof USA was not obligated to follow Respondent’s recommendation, since it was not a subcontractor of Respondent. g. Roof USA completed their work, as did Respondent. h. Farmer testified that Respondent was only hired to fix and repair the damage to the breakfast room, since all leak repairs had been apparently accomplished by others. i. On or about February 2005, Complainant again experienced water leakage into the breakfast area of the hotel. Respondent was called back out to investigate the problem and make drywall repairs. In addition, Respondent was again requested to contact Roof USA to determine the cause of the leak. Taylor was apparently out of business at this time. j. On the February 2005 project, Respondent also prepared a report on where it believed that the water problem was coming from. During this investigation, they observed a problem with the elbow connection on one of Roof USA’s drain lines from the balcony on room 213. Since they had problems getting Roof USA to come back to the jobsite on time, Respondent repaired the elbow connection for the drain pipe. This is the only work that Respondent did on the drain system or the balcony on room 213 and it was not shown to be the source of any future water leakage experienced by Complainant. k. Although Farmer contends that Respondent was never hired to stop the water leakage, he admits that part of Respondent’s responsibility was to supervise Roof USA, in order to have Roof USA fix the problem, if the roofing related work of Roof USA was a cause of the problem. l. Sometime in 2006, the Registrar of Contractors’ inspector came to the jobsite to investigate the water leakage complaint on the instant case and a companion case, wherein Respondent had filed a Complaint against Roof USA. m. The Registrar of Contractors’ inspector appeared at the instant hearing and testified in regard to his findings. According to the inspector, he did a water test on the balcony of room 213, and was not able to cause any visible water leakage. Subsequent to concluding the jobsite inspection, he issued two Registrar of Contractors’ RC-C-007 forms. Both of these documents were entered into evidence. On the Complaint filed by Respondent against Roof USA, the form indicated no action required by Respondent, because “in this inspector’s opinion, the results of the water test ran on August 30, 2006 would tend to indicate that the drain installation and deck membrane installation done by Roof USA do not appear to be the source of the problem.” The RC-C-007 on the instant Complaint indicates “in this inspector’s opinion, the responsible party for this job is Charles Taylor who is not in business at this time thus, no action required of this contractor.” n. Notwithstanding the results of the above-described water test, Sam testified that he still experiences water leakage into the breakfast area of the lobby for the hotel.

3. It is unclear from the evidence and testimony presented herein, where the source of the continued roof leakage is coming from. What is clear, is that Respondent had nothing to do with any of the work performed that may be attributable to the source of the roof water leakage.

4. Notwithstanding Respondent’s limited duty to cause Roof USA to return to the project, as part of the contracts with Nextel, Roof USA was not Respondent’s subcontractor and Respondent never agreed to accept responsibility for work performed by Roof USA. In neither of the contracts with Nextel, did Respondent assume the responsibility to find and stop the water leakage. In addition, the record presented herein was inadequate to support any finding that the current water leakage, experienced in the breakfast area of the lobby, was directly attributable to any work performed by Roof USA.

5. Although Complainant may have claims against Nextel, Taylor, and Roof USA, it failed to establish that any actions of Respondent would constitute a violation of the applicable charged sections of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. 06-2063), together with the Complaint upon which it is based, be dismissed. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, May 17, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 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