ALJDEC decisions subject to certification as final

2010A-241455-ROC · Registrar of Contractors · 2010-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2010 at 8:15 a.m. APPEARANCES: Complainant Avalon Custom Homes, L.L.C. appeared through Lori Barker, Operations Manager; Respondent Shigeru Roofing Company, Inc. appeared through Michael C. Anderson, Esq., Anderson Law Offices. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On August 9, 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC103633, Class C-42 for residential roofing to Respondent Shigeru Roofing Company, Inc. On August 7, 2000, the Registrar issued License No. ROC157428, Class B for residential general contracting to Complainant Avalon Custom Homes, L.L.C. On August 14, 2009, the Registrar received a complaint against Respondent from Complainant. According to the complaint, Respondent had failed to construct the roof at 1439 Pioneer Trail in Bullhead City, Arizona, with adequate venting or according to plan. The Registrar’s inspector, William Redman, sent a copy of the complaint to Respondent for its immediate attention. On December 28, 2009, Inspector Redman performed a jobsite inspection. On January 11, 2010, Inspector Redman issued a Corrective Work Order (“CWO”) to Respondent. The CWO required Respondent, within fifteen days, to “[d]etermine the most professional and proper way to add the required attic ventilation and make repairs per codes and good workmanship standards.” On February 5, 2010, Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(2), (3) (namely A.A.C. R4-9- 108), and (23). On April 21, 2010, the Registrar received Respondent’s written answer to the Citation and Complaint. Respondent denied any statutory violations and affirmatively alleged that Complainant’s plans were faulty and that Complainant had failed to provide adequate supervision on the jobsite. 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 July 22, 2010, at 8:15 a.m. Inspector Redman testified. Complainant presented the testimony of Lori Barker, its Operations Manager and qualifying party. Complainant submitted thirteen exhibits. Respondent presented the testimony of Randal Miura, its President and qualifying party. Respondent submitted three exhibits. Hearing Evidence Complainant contracted with homeowner John Bennett to act as general contractor for the construction of his home. On February 21, 2007, Ms. Barker, on behalf of Complainant, accepted Respondent’s bid to install a DaVinci simulated slate roof on Mr. Bennett’s house for a total cost of $122,068.00. Respondent’s bid provided that “[a]ll work will be done per manufacturer’s recommendations and ‘good roofing practices.’” Section R806 of the International Residential Code requires the following for adequate roof ventilation: R806.1 Ventilation required. Enclosed attics . . . shall have cross ventilation for each separate space by ventilating openings protected against the entrance of rain or snow . . . .

R806.2 Minimum area. The total net free ventilating area shall not be less than 1/150 of the area of the space ventilated . . . .

Complainant prepared the plans for the Bennett residence. To comply with Section R806 of the International Residential Code, Page A3 of the roof plans provided the following calculations for attic ventilation: Calc’s based on 5,580.0 SF ÷ 150 = 37.20 SF. Gable end vent: 14” x 24” = 2.33 SF

Attic Ventilation Provided: Gable End Vent: 2.33 SF x 3 = 6.99 SF Ridge Venting: 4” x 110’-0” = 36.66 SF.

Attic Ventilation Provided: 43.65 SF

Figure 12.3 on the plan detail for installation of baffle insulation showed a “continuous soffit vent” under the roof eave. Figure 12.3 also showed “continuous ridge ventilation” at the ridge of the roof. Figure 12.3 did not refer to any size of ridge vent. The elevations of the plans for the Bennett residence showed circles on the gables, which were not marked as vents. Complainant did not call attention to any other instruction or requirement in the plans for attic ventilation. Mr. Miura testified that Respondent’s bid did not include a ridge vent because Complainant’s plans did not require it. Complainant as general contractor was responsible for interpreting the plans and supervising subcontractors to ensure that the house was built according to plans and in compliance with the International Residential Code. The framers on Mr. Bennett’s home did not construct the gable end vents that Complainant’s plan calculations included to meet the International Residential Code’s requirements. The framers also did not construct any soffit vents. Ms. Barker testified that the plans did not require soffit vents because the International Residential Code only required exhaust vents, not intake vents, for cross ventilation. Inspector Redman testified that the International Residential Code requires intake vents to be below exhaust vents, usually on the soffit or eave. Mr. Bennett’s home was constructed with less ridge venting than Complainant’s plan calculations included to meet the International Residential Code’s requirements for attic ventilation. Inspector Redman testified that sometimes roofers and sometimes framing carpenters cut the openings in attic framing for ridge vents. Mr. Miura testified that he approached Glen Moore, Complainant’s superintendent for construction of the Bennett residence, about the inadequate attic ventilation. Mr. Miura testified that he assumed that Mr. Moore had conveyed his communication to Ms. Barker. Mr. Miura testified that Mr. Moore had responded, “Oh, well, do what you can.” Mr. Miura testified that Respondent had installed ridge venting where the framers had left openings. Mr. Miura testified that Mr. Moore had signed off on the partial ridge venting that Respondent had installed and had approved final payment to Respondent. At some point, Mr. Bennett became concerned about the inadequate attic ventilation, as well as other issues in Complainant’s construction of his home. Pursuant to Complainant’s contract, Mr. Bennett initiated an arbitration proceeding to resolve his claims. Mr. Bennett did not file a complaint with the Registrar against Complainant’s or Respondent’s licenses. Complainant referred Mr. Bennett’s claims to its professional errors and omissions insurer, which hired an attorney to defend Complainant. Complainant also hired its own personal attorney. Mr. Bennett and Complainant’s insurer both hired experts to render opinions on a proper repair of the inadequate attic ventilation. Mr. Miura worked with Mr. Bennett, not Complainant, in suggesting possible repairs to the inadequate attic ventilation. On May 17, 2010, Complainant’s personal attorney estimated the cost of repairing the inadequate attic ventilation to be $6,920.00 in a letter written to Mr. Bennett’s attorney. By the time of the hearing in this matter, Complainant’s insurer and Mr. Bennett had reached a confidential settlement, under which Complainant’s insurer paid an undisclosed sum of money to Mr. Bennett for the inadequate attic ventilation and the other claims that he had made in arbitration. Under the settlement, Mr. Bennett has taken responsibility for repairing the inadequate attic ventilation. Mr. Bennett will not allow access to Respondent to repair the inadequate attic ventilation. Ms. Barker admitted that Complainant’s insurer paid the settlement. Ms. Barker on behalf of Complainant asked the Registrar to require Respondent to pay restitution in the amount of $6,920.00 because Complainant had paid insurance premiums and attorneys’ fees to its personal attorney to defend Mr. Bennett’s claim. According to the Registrar’s record, Respondent’s license is current and in good standing. This is the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses, such as lack of access, by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] Mr. Miura admitted that Respondent’s bid did not include attic ventilation and that he knew during Respondent’s construction of the roof that it allowed less ventilation than the International Residential Code required.

No contractor may depart from applicable code requirements under any circumstances, not even with a general contractor’s permission. Because Respondent is a member of the protected roofing trade, it owes an even greater duty to comply with industry standards and code.[6] Therefore, Complainant established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(2)[7] and (3).[8] Respondent established that Mr. Bennett did not allow access for Respondent to comply with the CWO. Therefore, Complainant did not establish cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(23).[9] The legislature has not empowered the Registrar to award attorney’s fees[10] or monetary damages[11] in administrative proceedings against a contractor’s license. The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work.[12] In this case, the inadequate attic ventilation was remediable and, in fact, Complainant’s insurer has paid Mr. Bennett to remedy it. Complainant did not incur any loss that is compensable in this administrative proceeding as a result of Respondent’s code violation. Therefore, Complainant did not establish a right to an award of restitution in any amount. With respect to the appropriate penalty, Respondent’s excellent record is a factor in mitigation of any discipline that may be imposed as a result of the contracting law violations established in this case. Another factor in mitigation is Complainant’s own culpability. Complainant’s plans were incomplete, and Complainant failed to supervise its framing subcontractor and Respondent to ensure that they built the house according to Complainant’s interpretation of the plans and in compliance with the International Residential Code.[13] Respondent has established that Mr. Bennett will not allow access for it to perform repairs. Respondent’s inability to perform repairs renders inappropriate any requirement that Respondent perform such repairs as a condition of keeping its license in good standing. RECOMMENDED ORDER Based on the contracting law violations that Complainant Avalon Custom Homes, L.L.C. established in this case, it is recommended that on the effective date of the Registrar’s final order, Respondent Shigeru Roofing Company, Inc.’s License No. ROC103633, Class C-42 be placed on disciplinary suspension for a period of seven days. It is further recommended that Respondent’s license be placed on disciplinary probation for a period of 60 days, beginning on the date that the Registrar lifts the seven-day disciplinary suspension of Respondent’s license. 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 11, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] 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). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See A.A.C. R4-9-103(A) (defining the scope of a Class B license residential general contracting to include “[c]onstruction of all or any part of a residential structure or appurtenance, except for . . . roofing (except shingles and shakes) which must be subcontracted to an appropriately licensed contractor.”). [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [8] 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 cited 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.” [9] 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.” [10] See Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 611-612, 838 P.2d 1369, 1372-73 (App. 1992) (Prevailing party in administrative claim before Registrar of Contractors was not entitled to attorney’s fees from its opponent under A.R.S. § 12-341.01(A) because administrative hearing is not an “action”). [11] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [12] 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). [13] The plain language of International Residential Code R806 and Inspector Redman’s testimony contradict Ms. Barker’s opinion that the code required ridge vents for exhaust, but not soffit or other intake vents for cross ventilation.

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