ALJDEC decisions subject to certification as final

07F-F0224-ROC-com · Registrar of Contractors · 2009-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2009 APPEARANCES: Chief Deputy County Attorney Mike Lessler represented Coconino County Community Services. Harold Smith appeared on behalf of Respondent Southwest Sani Vent & Duct Cleaning, Inc., doing business as Adobe Energy Management Co. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ 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. The hearing in this matter convened on Tuesday, September 1, 2009 at 9:00 a.m., pursuant to a Notice of Compliance Hearing issued by the Registrar of Contractors (“ROC”), to determine whether “Complainant [Coconino County Community Services (“Coconino”)] and or homeowners have unreasonably interfered with Respondent’s [Southwest Sani Vent & Duct Cleaning, Inc., doing business as Adobe Energy Management Co. (“Adobe”)] attempts at compliance.”[1] On the date and at the time scheduled for the hearing, Chief Deputy County Attorney Mike Lessler represented Coconino. Harold Smith appeared on behalf of Adobe. 2. The initial hearing of this matter was held before Administrative Law Judge Mark Silver over a period of four days, as follows: June 16, 2008, October 27, 2008, October 28, 2008, and October 29, 2008. The initial hearing concerned four separate residences. Mr. Lessler represented Coconino and Mr. Smith appeared on behalf of Adobe. The instant hearing concerns only one home that was the subject of the initial hearing, the Norlin-Nigg home. 3. On December 2, 2008, Judge Silver issued an Administrative Law Judge Decision finding in pertinent part, the following concerning the Norlin-Nigg residence: 35. It is determined and held that the weight of the credible evidence of record supports a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent on the Norlin-Nigg project: a. All of the required permits were not issued. b. Respondent failed to remove the existing roofing system, prior to the installation of the new roof. Although the record is unclear regarding whether or not the proper gage material was utilized for the new roof surface, Respondent remains responsible for the removal of the existing roof and any new roof application will require the proper permit. c. The seam for the roof material covering the clear story windows is indicative of substandard workmanship. d. Specified areas of new drywall texture fail to adequately match the rest of the wall. e. There is debris on a skylight lens and the interior side drywall has not been finished in said area. f. Respondent installed a gas line in the bathroom that does not provide any gas. g. The electrical work which has been covered needs to be exposed and any deficiencies in Respondent’s electrical work will need correction by Respondent. h. Although Respondent failed to complete all of the required drywall work, the homeowner has retained others to finish all of the drywall.

4. Judge Silver recommended in pertinent part that Adobe’s contracting license be suspended until the ROC received proof that Adobe accomplished appropriate and effective remedial work as it relates to the Norlin-Nigg residence, on the items set forth in Finding of Fact 35(a) through (g) or concluded other mutually acceptable arrangements with Coconino. 5. On December 29, 2008, the ROC adopted Judge Silver’s Recommended Order, with minor modifications. The December 29, 2008 Order advised the parties that any request for rehearing must be filed on or before February 2, 2009, and that any appeal to the Superior Court must be filed by February 7, 2009. Adobe filed a Request for Rehearing in regard to Case No. F07-0224 (Norlin- Nigg residence) only, and on April 7, 2009, the ROC issued an Order Denying Request for Rehearing/Order Setting Compliance Hearing. 6. The parties stipulated at hearing that the only remaining items of corrective work are those ordered to be accomplished to the roof and skylight. 7. It is important to note that the specifications for the roof called for the following in pertinent part: “Remove existing metal roof down to existing decking. Install new metal foam roof using .024 baked on white aluminum roof.” See Exhibit R- 13. 8. The parties’ contract specifies the following in pertinent part:

3.4 Permits and Codes. CONTRACTOR shall obtain all permits required for the performance of this contract in compliance with applicable local requirements, including local building codes, housing codes, whether or not specified in the SCOPE OF WORK or SPECIFICATIONS.

See Exhibit R-25. 9. At hearing, Mr. Smith alleged that Coconino has prevented Adobe from complying with the ROC’s Order because Coconino refuses to issue the necessary permit. Mr. Smith contended that Adobe has made numerous attempts to obtain the required permit. However, Coconino has not issued a permit for this project for various reasons including the following: i) the homeowner has since constructed an addition to her home and the roof on the addition is red, and therefore, will now not accept a white roof as specified in the parties’ contract; ii) Coconino has requested that Adobe install windows on the home and Adobe has refused because such work is outside the scope of its work; and iii) Adobe has submitted all of the requested information, yet additional information is constantly required. 10. Mr. Smith submitted into evidence a copy of an email dated January 22, 2009, received from John Farnol, Coconino County Chief Building Inspector, that indicates in pertinent part: “The roof material shall be an industry recognized metal roof for a house of the type and color the owner requests and is now installed on the new part of the house.” See Exhibit R-12. Mr. Farnol testified that this statement was made in error. 11. Mr. Smith also submitted into evidence copies of the permit application and approval for his personal roof replacement, as well as for the Sequoyah home, which was one of the subjects of the initial hearing. See Exhibits 19, 20, and 23. Mr. Smith testified that those exhibits illustrate that Coconino County approved and issued permits for the same roofing material that Adobe used on the Norlin-Nigg residence, and proposes to re-use. However, Coconino County will not issue a permit to Adobe in the instant matter. Mr. Farnol testified that the county “made a mistake” in issuing a permit for Mr. Smith’s personal roof, and that the Sequoyah home is primarily a mobile home, thereby differing from the Norlin-Nigg home. 12. Mr. Smith also submitted to Coconino a Radco Test Report issued in November 1990 for “.023 Painted Aluminum Metal Roof Tests”. See Exhibit C5. Mr. Smith credibly testified that when he contacted Alumi-Cover, the manufacturer of the roofing material, to request a copy of the manufacturer’s specifications, the above-mentioned report was what was provided to him. When Adobe provided these specifications to Coconino, Mr. Farnol advised that they would not suffice. 13. Mr. Smith then obtained an Engineer Certification/Specification that he submitted to Coconino in an attempt to satisfy Coconino’s requirements for the issuance of a permit. See Exhibit R-14. That document is stamped by a registered professional engineer and certifies that the roofing material that was initially installed by Adobe, and which Adobe intends to re-use, is “per Scope of Work”. Id. The document further specifies: Metal Roof Material is 0.024 gauge baked on enamel white aluminum, installed on top of 1 ¾ polystyrene foam sheets of insulation. The product is secured by installing 2” x 2” pine lumber fastened by screws and calking. An aluminum drip rail is around ending edge of roof. THIS MATERIAL IS SUITABLE FOR FLAT AND SLOPED COMMERCIAL BUILDINGS, RESIDENTIAL BUILDING AND MANUFACTURED HOMES.

Id. (Emphasis in original). Mr. Farnol advised Adobe that the engineer’s report was insufficient. Mr. Farnol testified that it did not contain any supporting documentation establishing what tests, if any, were conducted by the engineer on the roofing material. 14. Mr. Smith testified that he believes Adobe has done everything it can in an attempt to comply with the ROC’s Order, but cannot do so due to Coconino County’s refusal to issue a permit for the work. 15. Mr. Farnol acknowledged that he could not require Adobe to install a roof in a color other than white as specified by the parties’ contract. Mr. Farnol testified that he explained to Ms. Norlin-Nigg that if the white roof Adobe proposes to install meets code requirements, the permit will issue. Mr. Farnol testified that the roof installed on the home, that Adobe proposes to re-install “does not meet recognized material standards” and he does not have manufacturer’s instructions for installation. However, Mr. Farnol acknowledged that he does not have ASTM (American Standard Testing Materials) reports for the red roof installed on the addition to the home. Mr. Farnol testified that such reports were not required because it is a recognized roof material. 16. Mr. Farnol acknowledged making numerous inaccurate statements to Adobe regarding this matter, such as with regard to the roof overhangs, and the requirement that a red roof be installed, and has rescinded such statements. Mr. Farnol further acknowledged that the permit issued for Mr. Smith’s personal residence specifying the same materials to be used on the Norlin-Nigg residence, was issued inadvertently. 17. Mr. Farnol testified that the roof material must conform to code requirements and be .024” thick. The 2006 International Building Code (“IBC”) Section 1506.3 Material Specifications and Physical Characteristics, states the following: Roof-covering materials shall conform to the applicable standards listed in this chapter. In the absence of applicable standards or where materials are of questionable suitability, testing by an approved agency shall be required by the building official to determine the character, quality and limitations of application of the materials.

See Exhibit C3. Mr. Farnol testified that such testing is expensive and could take years. 18. Pursuant to IBC Table 1507.4.3(1) Metal Roof Coverings, aluminum roof covering material must have a Standard Application Rate/Thickness of “ASTM B 209, 0.024 inch minimum thickness for roll-formed panels”. Id. The roof used by Adobe is an aluminum roll-form panel roof. 19. Mr. Farnol testified that Coconino County requires the following in order for it to issue a permit to Adobe for the roof replacement: i) the supporting documentation for the engineering report; ii) ASTM standards; and iii) installation instructions. The last two documents should come from the manufacturer of the product. 20. Mr. Farnol testified that while conducting research via the internet, he discovered that the products manufactured by Alumi-Cover are specified for mobile homes. However, during a recess, the parties contacted Alumi-Cover via telephone and were informed that the material could also be used on conventional residential homes Alumi- Cover’s representatives further advised that the product does not have ASTM standards because it weighs less than one pound per square foot. 21. Mr. Farnol acknowledged that Coconino County failed to request ASTM standards for the Smith permit and the Sequoyah permit, and that the homes passed county inspections, and blamed such failure on a “lack of awareness” on the part of the county. 22. Mr. Farnol acknowledged that all corrective work with the exception of the roof was accomplished by Adobe by February 6, 2009. 23. The Administrative Law Judge finds, based on the weight of the evidence presented at hearing, that it appears that Adobe has attempted in good faith to comply with the ROC’s Order, and that such efforts have been somewhat hindered by several erroneous assertions and inconsistent statements made by Coconino’s building official. However, pursuant to the ROC’s Order, Adobe was required to obtain a permit for the roof. Pursuant to the terms of its contract, Adobe is required to comply with code provisions, and the county will not issue a permit unless such compliance is achieved. In this case, Adobe is not in compliance with the requirements of the building code because Adobe has failed to establish that the roof material complies with ASTM B 209. Further, the engineer’s report does not contain the testing documentation utilized by the engineer, and the Radco test report is 19 years old and specifies that it pertains to material that is .023” thick, not .024” thick as is required in this matter. The Administrative Law Judge further finds, based on the evidence presented at hearing, that Coconino did not unreasonably interfere with Adobe’s attempts at compliance. CONCLUSIONS OF LAW 1. Adobe has failed to sustain its burden of proving that Coconino has unreasonably interfered with its attempts at compliance. See Arizona Administrative Code Rule R2-19-119. 2. In view of Adobe’s failure to fully comply with the terms of the December 29, 2009 Order and in accordance with the June 16, 2009 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against Adobe’s Class B- license. RECOMMENDED ORDER In view of the foregoing, it is recommended that commencing on the effective date of the Order entered in this matter, Adobe’s Class B- license (no. 108802) shall be suspended until the ROC receives and accepts proof that Adobe has at its option, either: i) complied with code requirements for the issuance of the roofing permit, and performs the required corrective work; or ii) refunded the portion of the contract amount paid for the roofing.

It is further recommended that if Adobe complies with either of the above-provisions on or before the Order’s effective date, then no license suspension shall be imposed. 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, September 23, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of September, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] The homeowner was not a party to this proceeding and did not participate in the administrative hearing.

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