ALJDEC decisions subject to certification as final

09F-2409-ROC · Registrar of Contractors · 2009-11-12

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2009

APPEARANCES: Complainant appeared and testified on her own behalf; Respondent was represented by its President and Qualifying Party Paul LaNue and by its Secretary/Treasurer Rhonda LaNue.

WITNESSES: For Complainant: Joseph D. Carey, Conn. Inspector Diane Sarnataro Brian LaPorte, General Contractor

For Respondent: Geoff Galgan, ROC Inspector Rhonda La Nue Paul La Nue Daryl Moore, Superintendent

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Diane Sarnataro brings this action alleging wrongful conduct and poor workmanship by Respondent Lyons Roofing when Respondent performed roof tile removal and replacement on Complainant’s roof. Complainant contends that Respondent should have identified and informed her of a underlying structural problem with her roof, that Respondent should have removed the existing felt before laying new felt, that Respondent failed to properly inspect the roof, and other workmanship deficiencies. Respondent denies these allegations, based on the scope of the contract and the agreement between the parties. During the hearing, Respondent agreed to perform several corrections. First, Respondent agreed to replace ten (10) damaged walking stones. Second, Respondent agreed to make the two side walls of the “clearstory” portion of the roof match as to the color at the bottom.[1] Finally, Respondent agreed to perform the work described in the Corrective Work Order as noted below. During that CWO work, Respondent agrees that it will remove the felt in any areas needed for the joist replacement and replace any “bad” wood decking found at Respondent’s expense. However, Respondent does not agree to bear the expense for any “good” wood that might need to be replaced because of the joist correction. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibit Book and Respondent’s Exhibits A and B. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding a violation, upholding and affirming the Corrective Work Order, and recommending discipline of the license unless Respondent performs corrective work. FINDINGS OF FACT 1. Respondent is the holder of a class K-42 specialty dual (commercial and residential) contracting license (No. 205554) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform installation and repair of roofs and decks and related work.[2] 2. In January 2007, the parties entered into a contract for roofing work. The contract called for “Tile Removal and Replacement.” The provisions of the contract called for Respondent to remove the existing roof tile, replace any wood decking at extra cost if needed, install new felt, install new battens where needed, and replace the tile. A handwritten provision in the terms of the contract stated “no tear off.” Based on the testimony at hearing, it is determined that the provision meant that Respondent would not remove the existing felt, but was to place the new felt over the existing. This is what Respondent did. 3. Another handwritten portion of the contract stated that “There is a dip on front roof field prior to start.” This refers to a visible sag in the roof on the front portion of the roof, above the living and dining rooms of the home. The evidence shows that under that portion of the roof, there are joists that have experienced “typical long term creep deflection” that caused the visible sag.[3] However, the condition of the joists was not known at the time that Respondent did its work on the roof. 4. In October 2008, Complainant filed her complaint with the ROC listing numerous items, many of which concerned contractual duties of the Respondent. The main point of the complaint was that Respondent did not notify Complainant that the sag in the front of the roof could have been caused by an underlying structural problem that Complainant should have had checked by an appropriate expert. 5. ROC Inspector Jack Clark inspected the home in November 2008 and issued a Corrective Work Order (“CWO”) that stated the following; After looking the house over it is this inspector’s opinion that the roofer, Lyons Roofing, is not responsible for the framing deficiencies that have caused the front roof to sag and the rear roof to sag and fail. Perhaps the roofer should have warned the homeowner of the problems but he was hired to replace the felt under the roof tile and he may have been unaware of the problems.

The contractor, Lyons Roofing is to coordinate with the general contractor to remove the roof tiles so that repairs to the roof structure can be effected and replace the roof tiles with proper underlayment, when the structural repairs are completed.

Respondent has agreed to comply with this order and the Administrative Law Judge finds that the evidence supports its conclusions. 6. The evidence given the most weight with regard to the roof structure issue is the engineering report that is Exhibit B. This report was issued by a licensed engineer hired by Complainant’s insurance company. It describes the condition of the front roof portion at issue here and states that the sag is caused by typical long term creep deflection of the joists. It notes that the roof was properly designed and built in accordance with standards at the time, but that current standards have changed. The report notes that the long term creep deflection did not exceed the anticipated amount that would be expected. There was no evidence that the joists were cracked or broken that would indicate “severe structural distress of the roof framing members or a life safety concern.” The report then states that new joists will need to be installed to correct the sag. 7. The evidence does not show that Respondent knew or should have known about the creep deflection described above. Neither is there evidence that the condition has created a life safety concern. Therefore, Respondent had no duty to inform Complainant about the possibility of an underlying structural problem. 8. After the CWO was issued, Complainant filed several addenda to her complaint. The issues that need to be decided by this tribunal were identified and clarified at the start of the evidentiary hearing, and this tribunal makes the following rulings with regard to those issues. 9. The evidence shows that Respondent performed the work that it was required to perform under the contract. The contract clearly states “no tear off” and Complainant signed it, consenting to “no tear off.” 10. The evidence is not sufficient to show that Respondent failed to comply with Arizona standards. The evidence is not sufficient to show that a building permit was required[4] or that the existing felt had to be removed under Arizona standards. 11. The evidence is not sufficient to show that Respondent failed to properly inspect the wood under the terms of the contract. Witnesses credibly testified that Respondent’s employees walked on the roof, after the tile was removed, to check for soft spots and observed the existing felt for signs of underlying damage. That is all that can be done when there is no tear off of the felt. Under the terms of the contract, this was an adequate inspection. 12. Complainant has presented sufficient evidence to show that there is water damage in the interior of her home in the living room and dining room areas[5] and that Respondent is responsible for that damage. The testimony of Brian LaPorte, General Manager of Masters Restoration, a general contractor doing work on Complainant’s roof system, is found to be credible on this issue and establishes the claim that Respondent is responsible for that interior damage. 13. There is no persuasive evidence showing that Respondent’s advertising is false or misleading. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[8] Complainant has met that burden, but only with regard to the interior water leak damage. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(9), (A)(16), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(2) requires a contractor to build according to plans, specifications, and building codes. Subsection (A)(9) requires a contractor to complete a project for the price stated in the contract. Subsection (A)(16) prohibits false or misleading advertising. And subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. In addition, subsection (A)(7), which prohibits wrongful acts that substantially harm another, was added by consent of the parties at the hearing. 3. For the reasons noted above, Complainant has not shown by a preponderance of evidence that Respondent has violated those subsections of the statute, except with respect to the interior leak damage, which is a workmanship violation of (A)(3) and needs correction. Respondent must correct the existing damage and perform whatever work is necessary to ensure that no further water damage will occur in those areas. 4. Respondent also must comply with the CWO, as Respondent has agreed to do. Respondent’s compliance will depend upon doing the work described in the CWO and the work agreed upon as described above in the second paragraph of this Decision. Respondent should be given a reasonable opportunity to make the corrections ordered. If Respondent makes those corrections, the case should be closed. If Respondent does not make such corrections, Respondent’s license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that Class K-42 license 205554, held by Respondent L R Acquisitions, Inc. dba Lyons Roofing be suspended beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of correction of the items noted above (interior damage and CWO) and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 09-2409 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 will be 40 days from the date of that certification.

Done this 12th day of November 2009.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This item was discussed in more detail at the hearing. Respondent should comply with that discussion. [2] See, Arizona Administrative Code (A.A.C.) R4-9-104 for a description of dual license classifications. [3] Exhibit B. [4] No statement from a local authority was presented and the documentary evidence in Complainant’s Exhibit Book, Section 3, from the Phoenix website is inconclusive. While it states that a permit is required for “roof replacement,” it also states that a permit it is not required to re-tile a roof when the same material is used. The work done by Respondent seems closer to the latter than the former. [5] This damage is shown in the Exhibit Book, Photograph Section 5. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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