ALJDEC decisions subject to certification as final

08F-1859-ROC · Registrar of Contractors · 2009-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2009 APPEARANCES: Patrick Monahan, Esq. represented Complainant Carlos Davalos. Respondent T and C Roofing, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent T and C Roofing, L.L.C. (“T and C”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Background On December 24, 2008, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on January 28, 2009 at 1:30 p.m. On the date and at the time scheduled for the hearing, Complainant Carlos Davalos was present with counsel, Patrick Monahan. No one appeared on behalf of T and C. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of T and C, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in T and C’s absence.

FINDINGS OF FACT T and C is the holder of a Class K-42 license (No. 204863) issued by the Registrar of Contractors (“ROC”).[1] On or about August 24, 2006, Complainant Carlos Davalos contracted with T and C for T and C to remove and replace the roof on his home. See Exhibit A. The contract price was $7,700.00. Id. Mr. Davalos paid T and C in full plus an additional $400.00. T and C performed its work at Mr. Davalos’ home. Approximately two to three months after T and C completed its work, and during the first rainstorm since completion, the roof leaked. Mr. Davalos contacted T and C repeatedly. Finally T and C performed some repair work. However, when it rained again, the roof leaked once again. Every time it rained thereafter, the roof continued to leak. On January 18, 2008, Mr. Davalos filed a complaint against T and C with the ROC. In his complaint, Mr. Davalos alleged the following: The new roof put on by the contractor in Sept. 06 leaks more now than it did before it was put on. I had one leak before I called him. Now there are at least fifteen! I’ve called numerous times to him to fix the damage done to the inside of my house. He has failed to address the problem after fifty calls and at least eight visits to my home. My house continues to leak to this day.

See Exhibit B. ROC Inspector Randy Cason investigated Mr. Davalos’ complaint. On February 21, 2008, Inspector Cason conducted a jobsite inspection. Present for the inspection were Mr. Davalos and T and C’s representative, Kenny Hayes. See Exhibit C. On March 10, 2008, following the jobsite inspection, Inspector Cason issued a Corrective Work Order (“CWO”) under which the ROC gave T and C 15 days to take corrective action with respect to the complaint items as follows: Complaint - New roof covering material has multiple leaks throughout the installation of materials on the roof. These leaks have caused damage to the interior drywall ceiling below. The night before this inspection, it had rained which left excessive ponding on the roof which exceeded 1/3 of the total roof area and depths of ponding from ¼” to 1 ¼”. Contractor is to correct these areas by appropriate means.

During this inspection there was no presents of water leaking through the roof material. Prior to this inspection the contractor had been out to properly address the roof leaks. However at this time, the interior drywall ceiling has not been repaired due to the leaks caused prior to the contractor addressing them. Contractor is to complete/correct damage to the interior drywall ceiling by appropriate means.

See Exhibit D.

8. Inspector Cason was not present at the administrative hearing, and therefore did not present any testimony regarding his findings or directives. 9. Mr. Davalos testified at hearing that there are eighteen areas of roof where leaks occur and that 70% of his ceiling has been destroyed. Mr. Davalos submitted into evidence several photographs depicting the severity of the damage caused by the leaks. See Exhibit L. Mr. Davalos credibly testified that his roof continues to leak to this day. 10. Mr. Davalos submitted into evidence an evaluation and a proposal prepared by Patriot Coatings, L.L.C. (“Patriot”). See Exhibits H and I. After an evaluation of the roof, Patriot recommended that the roof be removed and that a new spray polyurethane roof be installed, as the old roof and wood was so damaged by the ponding, that it would be more costly to replace the roof in the current manner. See Exhibit I. The proposal amount for the removal and replacement of Mr. Davalos’ roof is $17,153.74. See Exhibit H. 11. Mr. Davalos also submitted into evidence an estimate for the drywall repair in the amount of $2,400.00. See Exhibit J. CONCLUSIONS OF LAW In this proceeding, Mr. Davalos bears the burden to prove, by a preponderance of the evidence, that T and C is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its August 26, 2008 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Davalos met his burden of proof as to all three of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged T and C with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible, probative, and substantial evidence of record, that T and C failed to perform its work at Mr. Davalos’ home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that T and C violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued T and C a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that T and C failed to perform the required corrective work without valid justification. Therefore, the Administrative Law Judge concludes that T and C violated A.R.S. § 32-1154(A)(23). 6. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that T and C committed wrongful acts that substantially injured Mr. Davalos by failing to perform its work at Mr. Davalos’ home in a professional and workmanlike manner resulting in substantial damage to the interior of his home, and by failing to comply with the CWO. Therefore, the Administrative Law Judge concludes that T and C violated A.R.S. § 32-1154(A)(7). 7. Based on the foregoing, it is appropriate for the ROC to impose discipline against T and C’s Class K-42 license. 8. Upon consideration of all of the facts and circumstances presented by this case, including T and C’s failure to appear for hearing and T and C’s license status, the Administrative Law Judge concludes that the ROC should revoke T and C’s Class K-42 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that T and C’s Class K-42 license shall be revoked on the effective date of the Order entered in this matter. 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, February 17, 2009

______________________________________ Sondra J. Vanella Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that T and C’s contracting license was suspended on October 2, 2008 in Case No. G07-1979, and revoked on December 12, 2008 in Case No. M08-0842. Such suspended and revoked license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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