ALJDEC decisions subject to certification as final

2008A-2519159-ROC · Registrar of Contractors · 2011-01-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: November 17, 2010, and January 3, 2011 APPEARANCES: Steven and Linda Bruen appeared personally. Beazer Homes Holding Corp., doing business as Beazer Homes, was represented by its attorney, Zahnie L. Soe Myint, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ This matter came on for a compliance hearing to determine whether Respondent has complied with the parties’ prior settlement agreement. Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order on Compliance. FINDINGS OF FACT The Parties’ Settlement Agreement Regarding Roof Issues in Case No. G08- 0251 1. The underlying disciplinary case between Steven and Linda Bruen (“Complainants”) and Beazer Homes Holdings Corp., doing business as Beazer Homes (“Respondent”), is Case No. G08-0251. 2. The Registrar of Contractors (“Registrar”) forwarded Case No. G08-0251 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 3. On July 9, 2009, Administrative Law Judge Allen Reed[1] issued his Administrative Law Judge Decision in Case No. G08-0251, based upon a settlement agreement reached by the parties during the formal hearing but prior to its conclusion. 4. Judge Reed’s Administrative Law Judge Decision addressed Complainants’ roof system issues as follows: 1. Tile Roof System: The Complainant’s [sic] inspector and the Respondent’s installer will meet to determine the problems to be corrected. The Respondent’s installer will make necessary corrections which will then be re-inspected by the Complainant’s inspector.

5. Neither party objected to Judge Reed’s finding regarding the parties’ settlement terms for the roofing system. Complainants’ Roofing Consultants 6. Complainants hired Rooftop Consultants, Inc. as their roofing inspector consultant. 7. Dan Prince and Charlie Miller performed roof inspections of Complainants’ roof and advised Complainants of their findings. 8. Rooftop Consultants, Inc., Dan Prince, and Charlie Miller are not licensed as contractors by the Registrar of Contractors, and they are not licensed as home inspectors by the Arizona Board of Technical Registration. Relationship between Respondent and Complainants’ Roofing Consultant Pursuant to the Settlement Agreement

9. The parties’ settlement agreement required Respondent to meet with Complainants’ roofing consultant to determine necessary repairs to Complainants’ roof. As the licensed contractor, Respondent was responsible for making necessary repairs to bring the roof within workmanship standards. The settlement agreement did not require Respondent to perform work at the direction of Complainants’ unlicensed roofing consultant or its employees. Complainants’ roofing consultant could not direct Respondent’s remedial work. Complainants’ Request for a Compliance Hearing 10. On October 27, 2009, Complainants filed their request for a compliance hearing with the Registrar. 11. Attached as Appendix 3 of Complainant’s request for a compliance hearing was a copy of Rooftop Consultants Inc.’s Status Report dated October 21, 2009, that identified issues purportedly not completed to workmanship standards by Respondent. Those items were listed as follows: vent pipe flashing; metal eave closure; attachment of roof tiles; and Respondent’s use of caulk in lieu of nails. 12. The Registrar re-designated Case No. G08-0251 as Case No. 2008- 2519159. 13. The Registrar forwarded Case No. 2008-2519159 to the Office of Administrative Hearings for a compliance hearing. 14. The scope of the compliance hearing is determined to be the four items set forth in Rooftop Consultants Inc.’s October 21, 2009 status report attached to Complainants’ request for compliance hearing. Vent Pipe Flashing 15. Respondent is determined to have properly completed vent pipe flashing of Complainants’ roof. Metal Eave Closure 16. Respondent was not required to install eave riser bird stop as claimed by Complainant. At the time the permit was pulled for Complainants’ roof in 2006, eave riser bird stop was not required to be installed. It was an option for homeowners and Complainants did not select and pay for eave riser bird stop. The requirement to install eave riser bird stop occurred later. 17. Respondent is determined to have installed proper eave risers on Complainants’ residence. Attachment of Roof Tiles 18. Respondent properly attached roof tiles on Complainants’ roof. 19. There is evidence that some roof tiles have become loose. Since there have been many individuals walking on Complainants’ roof, including Rooftop Consultants Inc.’s personnel and Respondent’s workers, it cannot be determined who is responsible for the loose roof tiles.[2] Therefore, Respondent is determined not to be responsible for repairing the loose tiles. The Use of Caulk in Lieu of Nails 20. Respondent properly used caulk adhesive to fasten roof tiles. Issue of Drooping or Hanging Roof Tiles at Eaves 21. At the hearing, Complainants presented evidence in support of their contention that there are drooping or hanging roof tiles at eaves. 22. Respondent argued that this issue was not raised in Complainants’ request for a compliance hearing or in Rooftop Consultants Inc.’s Status Report, both of which established the scope of the compliance hearing. 23. Fundamental due process and fairness dictate that Respondent be given actual notice of the scope of the compliance hearing. Complainants failed to give proper notice of the issue of drooping or hanging roof tiles at eaves. Therefore, that issue is determined to be outside the scope of the compliance hearing. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. As to the four issues set forth in the Rooftop Consultants Inc.’s Status Report dated October 21, 2009, it is concluded that Respondent complied with the terms of the parties’ settlement agreement by performing necessary remedial repairs to workmanship standards. The evidence of record supports this conclusion. 3. Complainants failed to give proper notice of their issue pertaining to drooping or hanging roof tiles at eaves to either the Registrar or Respondent. Therefore, that issue is outside the scope of the instant compliance hearing. The evidence of record supports this conclusion.

RECOMMENDED ORDER ON COMPLIANCE The Citation and Complaint in Case No. G08-0251/2008A-2519159 shall be closed immediately. 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 5 days from the date of that certification.

Done this day, January 14, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Judge Reed has since retired from the Office of Administrative Hearings. [2] The Registrar’s assigned inspector, Craig Williams, did not go on Complainants’ roof pursuant to the Registrar’s policy.

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