ALJDEC decisions subject to certification as final

07F-G1979-ROC · Registrar of Contractors · 2008-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2008 APPEARANCES: The Complainant appeared in his own behalf. ` Kenneth Hays, Qualifying Party, appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainant built his home in Desert Hills, Arizona, as an Owner- Builder. 2. In September, 2004, the Respondent submitted a bid in the amount of $14,402.00, to install a concrete tile roof. 3. Subsequently, the parties agreed to the addition of a “walk deck” over the patio for an additional $7,000.00[1]. 4. The Respondent began work in September, 2005. The roof felt was applied but the tiles were not installed. 5. In October, 2005, the roof was not completed[2] and a rainstorm caused leaks which damaged some of the interior drywall. According to the Respondent, a tile roof does little to ensure against leakage[3]. Given this testimony, the leaks were the responsibility of the Respondent. 6. In March, 2006, the roof was still not completed and heavy rains caused significant leaks. According to the Complainant, 12 to 15 areas of the home had leaks. 7. The Respondent repapered damaged areas, and laid the roof tile on April 13, 2006. 8. The Respondent applied multiple coats of a polyurethane product to the walk deck. According to the Respondent, the walk deck was not properly secured to the framing and the Complainant had to reinforce it (screw it down).[4] The Respondent acknowledges the last roof coat was not applied to the walk deck. 9. The Complainant has paid all but approximately $3,000.00 to the Respondent. 10. On June 20, 2007 the Complainant filed the Complaint with the Registrar of Contractors (ROC). 11. On August 6, 2007, ROC Inspector Jim Dimond performed and inspection of the roof and issued Corrective Work Order (CWO) on August 16, 2007. 12. The CWO required the Respondent to complete the walk deck, to resolve reimbursement issues with the Complainant for interior water drywall damage from walk deck leaks, to correct blown off or missing tiles[5], to properly align roof tile lines[6], to correct poor tile cuts, damaged vents and pipes, correct mudballs (need patching), clean debris and loose tile left on the roof, and correct the angle of the bottom row of tiles. 13. The Respondent began corrective work on August 22, 2007. He was able to correct a portion of the angled bottom row tiles but was told to leave the job by the Complainant because the Complainant learned Respondent’s license was suspended at the time. 14. According to the Respondent, he sent several certified letters to the Complainant[7] after his license was reinstated but the Complainant did not respond. 15. The Complainant acknowledges receiving one letter from the Respondent but not accepting it because according to the Complainant, there was postage due. 16. Dimond performed a prehearing inspection on May 12, 2008. Aside from the limited work done on lower edge angled tiles, the remaining items on the CWO were not completed by the Respondent. 17. In the winter of 2008, the Complainant paid $600.00 for repairs of the roof over the garage. The Complainant also seeks $400.00 for drywall repairs although he presented no documentary evidence of the cost[8]. 18. The Respondent testified he thought the roof leaks had been corrected and that the Complainant would not allow him back on the site after being told to leave and receiving no response to his certified letter(s). Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32-1154(A)(1), abandonment or failure to complete without justification; (A)(2), material departure from plans or specifications prejudicial to another; (A)(3)/A.A.C. R4-9-108, workmanship standards; (A)(7), a wrongful act wit substantial injury; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The (A)(1) and (A)(23) violations are not proven by a preponderance of the evidence. It appears that neither party was using its best effort to complete the project in compliance with the CWO. However, the Complainant’s rather flimsy reason for not accepting the Respondent’s certified mail (even if minimal postage was due[9]), after having the Respondent leave the job because the license suspension, is a sufficient defense to the two cited allegations. 5. The (A)(2) violation is also not proven. The roof tile alignment issue is without an adequate standard and the photographic does not show such deviation as to clearly require a reasonable person to conclude the deviation was material and prejudicial. Other items in the Complaint do not fall within an (A)(2) classification. 6. The (A)(3) and (A)(7) violations are proven by the evidence. The Complainant’s and Dimond’s testimony regarding the water leaks damaging the interior of the home, was not rebutted. The fact that this occurred on two occasions separated by five months (October to March) reinforces the conclusion. In addition it is clear the Respondent failed to properly apply the last coat to the walk deck prior to the CWO. This resulted in weathering and damage to the deck which could have been avoided in part[10]. At this point in time the walk deck may require extensive repair (Exhibits B & C), although the evidence is unclear as to the extent of work necessary. 7. The evidence regarding the precise number of missing roof tiles was unclear. However, the photographic evidence shows the condition did exist. There is insufficient evidence regarding the poor tile cuts, damaged vents, pipes, and mudballs.[11] 8. The Complainant (Owner Builder)[12] in part seeks monetary reimbursement for repairs made in response to water damage. The evidence is that the Complainant has withheld payment of $3,000.00 to the Respondent for the reasons set forth in this decision. Under the circumstances, the question of any monetary compensation, is better left to a civil proceeding. 9. The correction of the walk deck and any missing tile replacement are the remaining proven matters. Recommended Order It is recommended commencing the effective date of the Order[13] issued in this matter that the Class K-42 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent and performed complete and satisfactory corrective work on the roof of the walk deck and replaced any broken and missing roof tiles as required[14].

Done this day, May 28, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] The final invoice dated September 16, 2005, was in the amount of $20,102.00 [2] Tile had been loaded on the roof but not laid. According to the Respondent, the tile was not to be laid until the house was painted. [3] It is the underlying felt which must maintain integrity. [4] There are additional issues surrounding the deck. According to the Respondent, the deck initially consisted of OSB and the Respondent informed the Complainant OSB was unsatisfactory. The deck was then purportedly changed to CDX (plywood). The Complainant testified he recalls no such issue raised or discussion with the Respondent and is not aware of OSB under the CDX as claimed by the Respondent. [5] Dimond did not go on the roof but relied on the Complainant for this information. The assertion of missing and blown off tiles was not disputed but the number of such tiles was open to question. [6] Dimond provided no specific standard and acknowledged this was his opinion. Photographic evidence shows the tile lines are not perfectly straight. However, absent gross and unreasonable deviation, the ALJ cannot say they require correction. [7] Evidence of a mailed certified letter was examined at the hearing. [8] The invoice from Jesse White lists a total of $975.00 for “Exterior Patio Repair and Paint”. [9] The Respondent strongly argues no postage was due. It is unknown under what circumstances certified mail would result in postage due. [10] The Respondent testified that part of the problem was that the deck was not properly vented. The Respondent wanted to confirm this but was not allowed to do so by the Complainant. The evidence is insufficient to conclude that the Respondent’s assertion regarding the venting, is a defense. [11] As previously stated, Dimond relied on the Complainant’s assertion regarding these matters and the Complainant did not present substantial evidence to prove the existence of the condition. [12] The Complainant undertook certain obligations, responsibilities, and risks when he decided to act as the Owner-Builder (akin to a general contractor), in the building of the home. Although he has recourse against a subcontractor, he may have shared liability in certain cases. [13] Forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings. [14] This also includes any clean up required from the original and from any corrective work.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826