ALJDEC decisions subject to certification as final

06F-2232-ROC · Registrar of Contractors · 2007-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2007

APPEARANCES: Complainants appeared on their own behalf and Respondent was represented by its attorney, Richard Cobb. 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. Pursuant to contract, Complainants retained Respondent to install a new shingle roof on their home. Complainants allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

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

a. Complainants’ home had an existing shingle roof. Although their roof was not leaking, they elected to replace same, since it was old. b. Respondent commenced work on the roof project on Friday, March 10, 2006. Evidence of record showed that significant rain was forecast for the weekend of March 11, 2006. c. After removing Complainants’ existing roof, replacing bad sections of the roof decking and installing the roofing felt over the roof deck, Respondent left the jobsite and advised Complainants that it would not return to install the shingles for the roof until the next business day, on Monday, March 13. d. Respondent’s former “tear-off” foreman, Mike Sullivan (“Sullivan”) appeared at the instant hearing and provided testimony. Sullivan was the foreman who oversaw the “tear-off” and new roofing felt installation on Complainants’ home. He indicated that it is not unusual to “tear-off” a roof and install the roofing felts, even though rain is expected, because the roofing felt provides a watertight barrier. e. According to Sullivan, he walked the roof on March 10, 2007 before he left the jobsite and found that the roofing membrane was installed properly, without any breaks in the roofing felt. f. Complainants testified that the next day, Saturday March 11, 2007, they experienced water leaks, in several areas of their home. It was undisputed that there was a very heavy rain on this date. Complainants immediately contacted Respondent regarding the leaks. Despite the fact that it was a Saturday, Respondent sent one of its superintendent’s, Tom Claxton (“Claxton”) to the home to see if he could stop the leaks. g. Claxton appeared at the instant hearing and provided testimony. It is important to note that Claxton no longer works for Respondent and testified that he left his employment due to some type of argument with his employer. Upon arriving at Complainants’ home and inspecting the roof, Claxton observed that someone had “stepped through” one of the roofing boards, causing a split in the roofing membrane and he also found inadequate sealing around a specified vent pipe. h. Claxton repaired the seal around the vent pipe, which he believed was due to Respondent’s failure to adequately seal the area and although he did not believe Respondent caused the “step-through” leak, he also repaired that area of the roof. Claxton believed that the “step-through” leak was caused by Bill Janss (“Janss”) because Janss had advised him that he had been on the roof and Janss’ ladder was placed below the area of the “step- through” leak. i. Janss testified that he observed the “step-through” leak initially from the attic of the home and that he did not cause the opening. j. After Claxton completed his repair work in the morning of March 11, it appeared that all water leaking had been stopped. However, later in the day or in the early evening hours, Complainants noticed further leaking in another area of the home and again contacted Respondent to fix the problem. Claxton returned to the home on or about 7:00 p.m. that evening and discovered a pinhole problem on the back side of the roof. He repaired that leak also. k. Sometime during the roof installation project, Complainants were advised by Respondent that the roof jack for their HVAC system was defective and they needed to contact a heating/air conditioning company to replace the roof jack, which would also require removing and reinstalling all of the elbow sections of the duct work that were on the roof. l. Based on the information received from Respondent, Complainants retained an air conditioning contractor to replace the roof jack on or about the middle of the week of March 13, 2007. m. Respondent completed the roof installation during the course of the week of March 13, 2007. n. On Sunday, March 19, 2007, Complainants again began to experience roof leaks. They contacted Respondent regarding these new leaks and Claxton again appeared at their home on a weekend day. According to Claxton, he determined that the leak was coming from improper installation of the new HVAC jack and ancillary exterior ductwork. He made an effort to caulk the system in the rain, but advised Complainants that said work would not be totally effective, due to the weather and that they needed to contact the HVAC contractor to make the proper repairs. o. Notwithstanding his belief that the leak in question on Sunday March 19, 2007 was only coming from the metal ducts and jacks attached to the HVAC system, upon Complainants’ insistence Claxton “reworked” some of the shingles in the area of the HVAC ductwork on the roof. p. Eventually, the HVAC contractor came to Complainants’ home and properly sealed all of the exterior duct work for the system and Complainants have not experienced any further water leakage into their home since that time. q. Subsequent to issuance of the Citation in this matter by the Registrar of Contractors, Complainants sought an addendum to the Complaint, which was granted by the Registrar of Contractors. The addendum added the issues of the lack of a permit for the job and the separation of the tongue and groove wood sheeting installed by Respondent in the overhang area over the front side of the home. r. A pre-hearing inspection was held by the appointed inspector for the Registrar of Contractors. He observed that the tongue wood was not adequately installed into the groove side of the wood decking material and this situation, according to the inspector, required remedial work. Respondent was present at the pre-hearing inspection and during the inspection offered to immediately correct any problems with the tongue and groove installation. Complainants declined Respondent’s offer of remedial work, stating that they wished to wait until the conclusion of the upcoming hearing. s. Evidence of record showed that Complainants failed to install any kind of sealant to the bare wood which was exposed on the underside of the front entry overhang. Respondent contends that the failure to apply a sealant could be the cause for the tongue and groove wood moving out of place, especially since it was not until seven (7) months after the wood was installed that Complainants observed the problem in this area. According to Respondent the wood was exposed to the heat of the summer of 2006 and that could be the source of the problem. Respondent was not under contract to paint or seal this wood. t. Conflicting evidence was presented regarding the need for a permit for this project. Complainants presented information from their website search for the City of Phoenix, which they believe indicates that a permit was required for a roof replacement. Respondent presented into evidence the pertinent section of the building code, which provides that a permit is not required when re-roofing with the same type of material. The assigned inspector for the Registrar of Contractors opined that although he was not aware of the exact code requirement for the City of Phoenix, he did not believe that a permit would be required if you were replacing a roof with the same type of roof material. u. The website wherein Complainants obtained their information regarding the need for a permit specifically provides, in the section entitled “When is a Residential Permit Not Needed” that a permit is not required when you “re-shingle or retile a roof when the same material is used. The same material was used on the project at issue herein. v. Although all of the work was completed on the roof project and there currently are no leaks in the roof, Complainants claim entitlement to consequential damages for the roof leaks, including lost wages from work and aggravation. In addition, they seek that Respondent reimburse their insurance company for the repairs that the insurance company made to their home and also reimbursement to Complainants for the $500.00 deductible they paid on their insurance claim. w. Evidence of record showed that after the first water leaks, Complainants sought information from Respondent regarding whether or not Respondent or Respondent’s insurance carrier would cause the repairs to be made to the interior water damage in their home. Complainants contend that they did not receive a prompt response from Respondent in this regard and ultimately contacted their own insurance carrier. Contrary to Complainants position, the evidence of record showed that Respondent’s drywall repair company contacted Complainants on March 15, 2007 (only three days after the water leakage was reported to Respondent and apparently stopped by Respondent’s work over the prior weekend) regarding coming to Complainants’ home to make the repairs. Respondent’s drywall repair person was advised by Monheim that they had already turned the matter over to their insurance company and thus, would not need him to make the repairs. x. Complainants contend that there was something wrong with Respondent submitting an amended invoice, adding $312.06 to their bill, after they had paid the original billing for the project. Evidence of record showed that the additional $312.06 was due to a clerical error committed by Respondent in applying all of the necessary sales tax to the bill.

3. Although it was most unfortunate that Complainants suffered roof leaks to their home after the “dry-in” of the roof was completed by Respondent, it must be noted that construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, Respondent was incredibly responsive to Complainants’ plight, sending an employee out to their home, two times on a Saturday (including Saturday evening), to make the necessary repairs, even when that employee was not sure that the problem was caused by Respondent. In addition, Respondent also sent the same employee back out to Complainants’ home, one week later, on a Sunday, to work on another reported leak.

4. Regarding the leak experienced by Complainants on Sunday, March 19, 2007, the weight of the evidence of record was sufficient to support a finding that this leak was due to the improper installation work by the air conditioning company, not Respondent.

5. Respondent was also shown by the evidence of record to be very responsive to the need to send a qualified repair person to Complainants’ home to take care of the interior water damage and only Complainants’ impatience, and decision to go with their own insurance carrier, prevented Respondent from making these repairs.

6. In regard to the issue of the separation of the tongue and groove wood installed by Respondent on the front overhang of the home, it is determined and held that it is just as likely that Complainants’ failure to seal the bare wood, as opposed to any improper installation by Respondent, could be the cause for the current problem with the tongue and groove wood installation. Complainants failed to sustain the requisite burden of proof necessary to establish that Respondent improperly installed the tongue and groove wood sheeting for the front overhang. In addition, on the very first and only occasion, when Respondent had an opportunity to have a Registrar of Contractors’ inspector view the issue, without admitting responsibility, Respondent immediately offered to make repairs to the wood decking. But for Complainants refusal to allow the remedial work to proceed, this issue would have been resolved prior to convening the instant hearing.

7. Nothing improper is determined in Respondent adjusting Complainants’ billing, after submitting what was originally believed to be their final invoice, due to Respondent catching its own error in failing to apply the correct tax to the billing.

8. Although there may have been initial leaks from the roof which were attributable to Respondent, Respondent was extremely prompt in responding to these issues and making the necessary corrections. Under all of the facts and circumstances presented herein, Respondent’s overall conduct on this roofing project cannot be deemed to constitute a violation of the spirit and intent of the State’s Contracting laws. Thus, Complainants failed to sustain the requisite burden of proof on any of the issues presented herein.

9. Regarding the issue of Complainants’ claim for monetary damages based on their aggravation, lost wages, the deductible for their insurance claim, and for reimbursement of their insurance carrier, these types of claimed damages are determined to be beyond the purview of the Registrar of Contractors, acting through an administrative license disciplinary forum. In the event that Complainants seek to further pursue their monetary claim for damages, then such a claim will need to be brought before a civil court of competent jurisdiction.

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. Complainants failed to sustain their 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. 06-2232), 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, March 6, 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