ALJDEC decisions subject to certification as final

08F-4206-ROC · Registrar of Contractors · 2009-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 28, 2009. APPEARANCES: Angela Ybarra appeared personally. Dry Plus Roofing, Inc. was represented by its member and qualifying party, Kevin A. Keith. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Dry Plus Roofing, L.L.C. (“Respondent”) is the holder of License No. 193889, a Class C-42 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On May 8, 2008, Angela Ybarra (“Complainant”) filed a written Complaint with the Registrar alleging statutory violations by Respondent on a roofing project at her residence located at 7008 S. 30th Avenue, Phoenix, Arizona. The Registrar designated the Complaint as Case No. 08-4206. 3. The Registrar issued a Citation and Complaint in Case No. 08-4206 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (16). 4. The Registrar forwarded Case No. 08-4206 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. In 2008, Complainant was experiencing leaks in the vicinity of her covered backyard patio and her house. Complainant contacted Respondent for a bid. 6. Respondent’s workers performed an inspection of Complainant’s roof. Respondent’s workers determined that the roof of the covered patio was deficient and a likely source of leakage. 7. Respondent’s workers did not perform a water test of the covered patio roof as such testing is not commonly performed. Respondent’s workers did not inspect or water test Complainant’s windows or walls, as such work would exceed the scope of its license. 8. After performing the inspection of Complainant’s covered patio, Respondent’s workers recommended that Complainant contact the contractor who constructed the patio cover. That contractor was an unlicensed contractor who had performed similar work at other residences in Complainant’s neighborhood. That individual was also incarcerated at the time of Respondent’s recommendation. 9. Respondent submitted a written bid dated February 29, 2008 to Complainant. The scope of work for the bid included the following: tearing off the existing patio roof to substrate; installing a new metal drip edge; and the torch application of one layer of “Pioyglass APP” modified roll roofing. Respondent offered Complainant a six-year workmanship warranty and a 12-year material warranty. 10. The contract price was $2,191.00, which included tax. 11. On April 17, 2008, Complainant accepted Respondent’s proposal in writing. Respondent performed its scope of work pursuant to the parties’ contract. However, Complainant has not paid any amount of the contract price to Respondent. 12. As a result of the filed Complaint, the Registrar’s assigned inspector, Rick Oelke, performed a jobsite inspection on June 5, 2008. During that inspection, Inspector Oelke performed a 10-minute water test of the patio roof. The roof did not leak. Inspector Oelke testified at the hearing that water testing is not a standard practice for a contractor to perform. 13. There is credible evidence that the patio roof installed by Respondent does not leak. 14. Complainant contends that it has since been discovered that her windows are leaking. She feels that Respondent guaranteed her that her leaking problems would be resolved with a new patio roof. 15. Respondent is found to have addressed the leak issues pertaining to Complainant’s patio roof. 16. Respondent is not responsible for leaks in Complainant’s windows or stucco. Those additional leaks needed to be addressed by a contractor properly licensed in those aspects of construction. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (16), as cited in the Citation and Complaint issued by the Registrar. Complainant had suspicions that she had problems with her patio roof and that is why she contacted Respondent, a roofing contractor. Respondent examined Complainant’s roof and opined it was leaking due to the deficient construction by the unlicensed roofer. Complainant entered into a contract with Respondent, who removed the deficient roof and installed a new roof that presently is not leaking. Respondent was not qualified to examine Complainant’s windows and stucco as sources of leaks. That is why Respondent did not perform such examinations. Complainant failed to sustain her burden of proving that she relied on “[f]alse, misleading or deceptive advertising” by Respondent resulting in her being “mislead or injured.” 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER The Citation and Complaint in Case No. 08-4206 shall be dismissed 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, September 16, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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