ALJDEC decisions subject to certification as final

07F-M0205-ROC · Registrar of Contractors · 2008-03-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 27, 2008 APPEARANCES: Complainant: Russell E. Bergstedt, Jr. appeared and was represented by counsel, Michael G. Wales. Respondent: Respondent failed to appear either by authorized representative or counsel. Registrar of Contractors: Inspector Jack Clark appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in this tribunal’s November 21, 2007 Order Granting Continuance. 2. Complainant Russell Bergstedt, Jr. (“Complainant”) is the owner of a residence located at 3709 E. Dakota, Phoenix, Arizona (“premises/project”). 3. Respondent Mountainside Roofing and Inspections, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 161127, Class C-42 (Residential Roofing) issued by the Registrar of Contractors (“ROC”) on January 8, 2001. James Brian Deems is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the Registrar indicates that this license was suspended November 22 through December 5, 2006 and April 20, 2007 for lack of bond and revoked January 10, 2007 (M07-0544). 4. Complainant filed a complaint with the ROC on August 1, 2006 wherein were alleged eight (8) problem areas with a roof replacement performed by Respondent. 5. On May 17, 2007, counsel for Complainant filed a request for hearing. 6. On August 9, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. M07-0205 charging Respondent with possible violations of A.R.S. §32-1154A 2, 7 and 3 (namely, R4-9-108, the workmanship rule). 7. Respondent filed an answer on August 22, 2007. 8. At the hearing, Complainant testified and submitted Exhibits 1, 3, 4A, 5, 6, 7 and 8 which were marked, admitted and considered. 9. Respondent failed to appear either through authorized representative or counsel. 10. Inspector Jack Clark appeared at the hearing but was not called as a witness and was excused prior to the presentation of any evidence by Complainant. 11. On or about February 28, 2004, Complainant contracted with Respondent to remove and replace flat and tile roofs on the premises which included, without limitation, installing metal flashing and scuppers. (Exhibit 1) 12. On or about March 9, 2004, Complainant paid Respondent $4,500.00 as the down payment for the contract price. Complainant subsequently remitted to Respondent the $5,725.00 balance due under the contract.[1] 13. Complainant testified that beginning on or about October 21, 2004, the subject roof began to leak in the kitchen area. 14. Subsequently, the premises’ roof began to leak over the master bedroom and rear patio area. 15. Complainant further testified that, despite numerous attempts by Respondent to correct the referenced leaks since the original work was performed, the roofs continue to leak in the kitchen, master bedroom and patio areas as well as at other locations in the premises which have caused significant damage to drywall in the premises. (Exhibits 3 and 4) Complainant also testified that he has also determined that Respondent failed to install and/or installed incorrectly the metal flashing and/or scuppers required by the contract. 16. Sometime in mid-2006, Complainant commissioned Lawrence Roof Consultants (“LRC”) to perform an inspection and assessment of the roof work performed by Respondent. As a result of such inspection, Lawrence recommended that the subject flat and tile roofs be replaced. (Exhibit 3) 17. Complainant further testified that in early 2006 he again contacted Respondent to return to attend to the continued leaks in the roof which requests were ignored.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. M07-0205 charged Respondent with possible violations of A.R.S. §32- 1154A 2, 7 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

… 3. Violation of any rule adopted by the Registrar. A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent failed to properly install the flat and tile roofs on the premises pursuant to the parties’ contract in violation of A.R.S. §32-1154A (3) and A.A.C. R4-9-108. 5. This tribunal further determines and concludes that the violation set forth in Conclusion of Law 4 above was wrongful and resulted in substantial injury to Complainant. Therefore, a violation of A.R.S. §32- 1154A (7) has been proven as cited. 6. It is further determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent failed to install the subject flat and tile roofs in violation of A.R.S. §32-1154A (2). 7. It is further determined and concluded that Respondent’s prior revocation as referenced in Finding of Fact 3 and failure to appear at the instant hearing shall serve as factors in aggravation of this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class C-42 license of Respondent be revoked.[2] Done this day, March 4, 2008.

______________________ Brian E. Smith Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By _________________________ ----------------------- [1] Complainant testified that he paid Respondent more than the contract price for some additional work not included in the parties’ contract. [2] 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.

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