ALJDEC decisions subject to certification as final

2010A-1427664-ROC · Registrar of Contractors · 2010-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2010 at 8:15 a.m. APPEARANCES: Complainant George Magarrell appeared on his own behalf; Respondent J D Quality Roofing, Inc. appeared through John Price, its president and qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On October 21, 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC169333, Class C42R for residential roofing, shingles, and shakes to Respondent J D Quality Roofing, Inc. Complainant George Magarrell owns a house located at 470 W. Acapulco Way in Paulden, Arizona (“the house”). T-Top Builders, Inc., License No. ROC142602, Class B (“T-Top”), had acted as general contractor for the construction of the house that Complainant later purchased. T-Top subcontracted to Respondent construction of the roof. Respondent completed construction of the roof on May 17, 2007. The completed house sat empty until October 8, 2008, when Complainant purchased it. Shingles blew off the roof of Complainant’s house in windstorms. Complainant’s brother, who Complainant testified used to be a licensed contractor,[1] repaired the roof five times. Complainant testified that due to his brother’s repairs, his roof did not leak. After Complainant’s brother repeatedly had repaired the roof, Complainant contacted his real estate agent, who informed him that Respondent originally had constructed the roof on his house. Complainant contacted Respondent’s president, John Price, to express his concerns about the roof. On July 31, 2009, Mr. Price met Complainant at his house. Mr. Price offered to have Respondent repair or replace the shingles that had blown off as a good-will gesture. However, because more than two years had passed since Respondent had constructed the roof, Mr. Price advised Complainant that if he wanted a new roof, he should contact his homeowner’s insurer. Complainant did not accept Respondent’s offer to repair the roof and Respondent did not accede to Complainant’s demand to replace it. On December 15, 2009, the Registrar received from Complainant a complaint against Respondent. The Registrar assigned the complaint to its inspector, Clifford Frandsen, for investigation. On January 4, 2010, Inspector Frandsen performed a jobsite inspection. Inspector Frandsen testified that in November and December 2009, many roofs in the Paulden area had been damaged due to “heavy weather.” Many contractors were required to renail or replace loose shingles on roofs that they had constructed. On or about January 21, 2010, Complainant paid $2,200.00 to Antelope Springs Construction, Inc., License No. ROC161983, Class B (“Antelope Springs”), to construct a new roof over the southern portion of his house. On January 25, 2010, Inspector Frandsen issued a Corrective Work Order (“CWO”) that required Respondent, within fifteen days, to correct by appropriate means the numerous areas of Complainant’s roof where shingles had blown off or were improperly nailed. Inspector Frandsen informed the parties in the CWO that because Respondent’s license was administratively suspended for lack of bond, it could not perform or subcontract the required corrective action until the suspension was lifted. Inspector Frandsen testified that within two days of January 25, 2010, when he issued the CWO, Respondent reinstated its bond. Inspector Frandsen testified that Respondent legally could have complied with the CWO. Mr. Price testified that Respondent purchased the supplies to comply with the CWO but that Complainant had already replaced the roof. On February 16, 2010, the Registrar received Complainant’s request for hearing. Complainant requested that the Registrar require Respondent to reimburse the $2,200.00 that he paid Antelope Springs to replace the roof. The Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108) and (23). On May 19, 2010, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any statutory violation and affirmatively alleged that Complainant had denied reasonable access to allow Respondent to comply with the CWO. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on August 10, 2010. Evidence was submitted to establish the chronology set forth above. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof and must establish cause to discipline Respondent’s license by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses, such as Complainant’s failure to provide reasonable access, by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] As a licensed contractor whose license is in good standing, Respondent is presumed to have the expertise to determine the proper method to correct workmanship deficiencies. Complainant has not established that he was justified in refusing to allow Respondent access to repair loose shingles if it did not agree to completely replace any portion of the roof. The legislature has not empowered the Registrar to award money damages.[7] The Registrar may penalize a contractor’s license by ordering payment of restitution if a contractor cannot perform corrective work to remedy a proven statutory.[8] Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.[9] That is not the case here. Respondent was legally competent to correct the roof, the roof was correctible, and, in fact, Antelope Springs had corrected the roof days before Inspector Frandsen issued the CWO. Complainant did not establish that any health or safety issue required him to replace the roof on January 21, 2010, rather than allowing Respondent a few more days to comply with the CWO. Therefore, Respondent established that Complainant did not allow reasonable access for Respondent to comply with the CWO. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(3)[10] and (23)[11] in its construction of, or failure to repair, the roof on Complainant’s house. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Case No. 2010-1427664 against Respondent J D Quality Roofing, Inc.’s License No. ROC169333, Class C42R. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, August 25, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] According to the Registrar’s records, Brian Magarrell and John Magarrell were listed on License No. ROC202774, Class B previously issued to Kitchen Bath and More, Inc., which has an address in Paulden. The Registrar revoked that license in 2006.

[2] See 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [8] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [9] In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat. See id. [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

-----------------------

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