ALJDEC decisions subject to certification as final

08F-A0219-ROC · Registrar of Contractors · 2008-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2008

APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its owner, Alex Mehder (“Mehder”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, 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. Pursuant to contract, Complainants retained Respondent to install a new metal roof on their existing home. Complainants allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. Lynn Valle (“Lynn”) was the first witness to testify at the hearing. The salient portions of her testimony included the following:

a. Complainants met Mehder at a roofing supply company. The parties had a conversation and Mehder advised them that he was experienced in installation of metal roofs and, based on said representations, Complainants agreed to hire Respondent for the installation of their new metal roof. b. The applicable contract between the parties was executed on or about September 25, 2007. Respondent advised that the project would take about two (2) weeks to complete. Complainants advised Respondent that they wished to be present during the construction project. c. Although originally Respondent did not request any down-payment, after the materials were delivered, Mehder requested that Complainants pay a portion of the contract. On or about October 15, 2007, Complainants paid Respondent the sum of $10,000.00. d. The project in question involves a main house and a separate guest house. Respondent commenced work on the guest house first. e. Respondent was not diligent in working on the project. Lynn testified that the workers consistently arrived on the job late and did not remain on the job for an extended period of time. Later she found out that the workers were involved on another project at the same time that they were supposed to be working on her project. f. Although the guest house roof was ultimately completed, it took three (3) weeks to finish. g. Complainants were not satisfied with the work performed on the guest house and, as of October 29, 2007, elected to terminate Respondent from any further work on the project,. Subsequent to terminating Respondent from the project, they filed the instant Complaint with the Registrar of Contractors. h. According to Lynn, at the time they terminated Respondent from the project they had paid Respondent for all of the materials for the guest house and the main house, along with the labor to install the metal roof on the guest house. i. Lynn contends that there are deficiencies in the roof installed on the guest house, as manifested by ridges that are not flat, areas where light shines through the roof, missing “zee” closures, vents installed on seams (ribs) of panels, flashing not installed, holes that would allow birds to nest, failure to screw-down areas of the roof, general failure to follow manufacturer’s specifications, a ridge that is not vented, bows in specified flashing. j. Complainants are of the opinion that Respondent’s employees are not competent and although Respondent made offers to repair the roof, Complainants would not allow Respondent to use the same workers that had performed the original work on the roof. Moreover, their desire was that Respondent should pay to have another licensed roofer repair the deficiencies in the metal roof. k. Notwithstanding her claim that there are deficiencies in the metal roof installed by Respondent, Complainants failed to present any evidence or testimony from the roofing manufacturer regarding the quality of the roof installed by Respondent. In addition, although she did submit bids from other roofers to perform remedial work on the roof, none of these roofers appeared at the hearing to testify regarding what they believed were the deficiencies in Respondent’s work.

3. Anibal Ovalle testified that he believes there is a valley missing on the roof.

4. Subsequent to filing the Complaint with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector appeared at the instant hearing and provided testimony regarding his investigation of the Complaint. The salient portions of the inspector’s testimony included the following:

a. After receiving the filed Complaint, the inspector conducted a jobsite inspection. At the time of the inspection, he observed several areas that required correction, as manifested by missing “zee” closures, ridge caps that were either bent or dented, gaps in the roof, and panels which need to be screwed-down. b. After concluding his jobsite inspection, the inspector issued a Corrective Work Order (“CWO”), which indicated that Respondent must repair the roof to meet manufacturer’s specifications and to assure that there are no leaks in the future.[1] Notwithstanding his findings of deficiencies in the roof, for unexplained reasons, he failed to specify exactly which items Respondent needed to correct. c. He testified that at the jobsite inspection, Complainant stated several times that they did not want Respondent back on their project, since they did not trust him or his employees. d. Although Complainants contend that there is a deficiency with a specified vent pipe that is installed on a metal panel rib, the inspector did not find that it was indicative of substandard workmanship, as long as it is properly sealed underneath. e. He conducted a prehearing inspection and confirmed that no work had been performed on the roof subsequent to the issuance of the CWO.

5. The salient portions of Mehder’s testimony included the following:

a. Weather was a factor during construction of the guest house roof and that is the main reason for the short work days. Moreover, he disagrees that the project took three (3) weeks, as he claims it was only two (2) weeks. b. According to Mehder, he has offered to make the necessary corrections numerous times and Complainants have consistently denied him access. c. He indicated that notwithstanding the prior actions to deny access to Respondent, he remains ready, willing and able to return to the roof and complete all necessary remedial work. d. He admits that the “zee” closures are missing and a number of screws still need to be installed. He does not feel there is anything else wrong with the roof. e. He testified that there is no issue with the installation of a vent pipe over a rib in the metal panel and all flashing was properly installed.

6. Evidence of record showed that immediately after the above- described jobsite inspection, Respondent sent a letter, dated December 19, 2007, to Complainants requesting access to make the required repairs. Complainants responded in writing, in a letter dated December 25, 2007, that they would allow the repairs as long as “the roofers you utilize to fix the roof understand and can be trusted to correctly work with the …metal roofing.” After receiving the response from Complainants, Respondent again sent a written letter to Complainants, dated December 29, 2007, indicating that it would make the necessary repairs and that Respondent would “determine the hours it works and the equipment needed to perform all necessary repairs.” In addition, this letter further went on to add that Respondent “will supply the necessary labor to perform the work…” The letter also indicated that “if I do not hear from you within the…fifteen days set by the Registrar of Contractors, we will understand that this is not acceptable to you.”

7. There was no adequate showing by Complainants that they ever responded to Respondent’s December 29, 2007 letter. In fact, on or about January 5, 2008 Complainants sent a letter to the assigned Registrar of Contractors’ inspector, indicating that Respondent failed to comply with the CWO during the allotted time period set forth therein. Shortly after this, the matter was sent to the Citation process with the Registrar of Contractors.

8. The weight of the evidence of record was sufficient to support a finding that the roof in question fails to comply with all manufacturer’s specifications, as manifested by missing “zee” closures, failure to install all required metal fasteners, ridge caps that were either bent or dented, and gaps in the roof. Based on these factors, the roof is not found to be in full compliance with the specifications of the manufacturer and thus, reflects an unworkmanlike result. This unworkmanlike result is also found to be a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

9. It is determined and held that Complainants effectively denied Respondent access by not allowing Respondent to choose the method and workers needed to correct the work set forth in the CWO. Thus, no violation of a failure to comply with an official Agency directive is determined.

10. Although Complainants concerns, frustrations, and aggravation regarding the problems they have experienced with the construction of their roof are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work.

11. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work. Neither the Registrar of Contractors nor a homeowner has the authority to dictate how those repairs should be made and what workers a contractor may utilize. Nevertheless, the Registrar of Contractors cannot order a trespass and in the event Complainants elect not to allow Respondent on their property, such action will be deemed to be tantamount to Respondent’s compliance with any condition set forth in the Order entered in this matter.

12. Although Respondent is free to select the workers to perform the remedial work and the type of work to be performed to accomplish full compliance with the manufacturer’s specifications for the metal roof, it must be noted that said remedial work must achieve results which are effective, adequate and otherwise acceptable.

13. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (2), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class K-42 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has not only corrected the items set forth in Findings of Fact no. 8, above, but also inspects and corrects, as necessary, any and all issues to assure that the metal roof complies with all applicable manufacturer’s specifications. Any unreasonable denial of access by Complainants shall be deemed to be tantamount to Respondent’s compliance with this condition. It is further recommended that if Respondent accomplishes the above- described corrective work or is denied reasonable access by Complainants on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and in that event this Citation (no. A08-0219) shall be closed. 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.

Done this day, September 2, 2008.

______________________________________ Mark A. Silver 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] Notwithstanding the reference by the inspector to roof leakage, evidence of record demonstrated that Complainants have not experienced any roof leaks whatsoever, as of the date of the instant hearing.

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