ALJDEC decisions subject to certification as final

2010A-25636485-ROC · Registrar of Contractors · 2011-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2011

APPEARANCES: Complainants appeared on their own behalf; Respondent appeared on his own behalf.

WITNESSES: Mark Alyea, ROC Inspector Richard Dronet Robert Hazel, employee of Respondent Julian Sanders

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action complaining about roof shingle installation by Respondent. Complainants allege failure to build according to specifications, poor workmanship, and failure to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits 1, 2, 3, and 4 from Complainants and Exhibits A, B, and C from Respondent, as well as testimony from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has failed to follow manufacturer specifications, has failed to perform in a workmanlike manner, and has failed to comply with a Corrective Work Order issued by the Registrar of Contractors. The Administrative Law Judge recommends that Respondent have others perform the corrective work in lieu of license suspension, and, in addition, that Respondent pay a civil penalty. FINDINGS OF FACT 1. Respondent is the holder of license B.110987-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Respondent is a sole proprietor. 2. In September 2008, Respondent performed roofing work on Complainants’ home, installing Owens Corning shingles. The contract between parties was verbal. Complainant Richard Dronet credibly testified at hearing that he instructed Respondent to use “open valley” construction and to build the open valleys according to the manufacturer’s specifications. The testimony and evidence shows that a “valley” is the point at which two planes of the roof meet, and an open valley means that the edges of the shingles do not touch, but rather form a valley by sitting on top of metal flashing laid over a liner/underlayment with the shingle edges several inches apart.[1] At the bottom of the valley, the distance between the two sides widens slightly. Complainants’ Exhibits 1 through 4 show Owens Corning specifications for open valley construction. 3. By his own admission, Respondent did not build the valleys according to the Owens Corning open valley specifications. Respondent testified that his construction is even better than the method shown in the manufacturer specifications. 4. ROC Inspector Mark Alyea inspected the roof work on February 17, 2010, April 8, 2010, and again the day before the hearing, March 24, 2011. In April 2010, he issued a Corrective Work Order (CWO) that found that the valleys were not built according to specifications and that they did not look like they had been installed in a professional manner.[2] He confirmed that the roof was in the same condition the day before the hearing. 5. Complainants’ Exhibit 3 is an e-mail from an Owens Corning representative explaining where to find the specifications for open valley construction applicable to the type of shingles used by Respondent on Complainants’ roof.[3] Together with Mr. Dronet’s credible testimony, Exhibit 3 establishes the applicable specifications and Exhibits 1, 2 ,and show those specifications. Again, Respondent admits that he did not build the valleys according to those specifications. 6. Respondent raises two defenses. First, Respondent testified that he has been in business a long time (over thirty years) and that his method is better than the manufacturer’s specifications. Second, Respondent complains that he was not allowed to inspect the roof within 15 days of notification of the complaint.[4] However, the evidence shows that Respondent had the opportunity to inspect the roof at the first jobsite inspection on February 17, 2010, but did not appear. That opportunity was about 15 days from when Respondent received notice of the complaint that was mailed to him on January 29, 2010. 7. Respondent’s arguments at hearing are not persuasive. 8. The evidence shows that Respondent did not build the valleys in accordance with manufacturer’s specifications, did not meet minimum workmanship standards, and did not comply with a valid CWO. The evidence also shows that Respondent is not willing to perform the corrective work according to the applicable specifications. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] 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.[7] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A(2)(requires building in accordance with plans, specifications, and building codes), (A)(3) by way of ROC Rule R4-9- 108 (requires that work meet minimum workmanship standards and industry standards), and (A)(23)(requires that licensees comply with CWOs). Respondent has violated those provisions. 3. The evidence shows that Respondent was informed about the applicable specifications by Mr. Dronet and did not follow them. In addition, Respondent’s position at the hearing was that he did not have to follow them and that he built something better. Based on the evidence of record[8] and his testimony at hearing, Respondent is not willing to perform the corrective work. 4. A review of Respondent’s current license status shows that the license is current and in good standing since 1996. 5. The appropriate sanction in this matter is to allow Respondent to comply with the CWO by hiring a third party contractor to do the work. That third party contractor must correct the roof so that it meets manufacturers specifications and complies with the April 20, 2010, CWO issued in this case. If Respondent does not cause this to be done in a timely manner, the license should be suspended. In addition, a civil penalty is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that license B.110987-R, held by Julian Mortensen Sanders dba Creative Builders, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has caused a properly licensed contractor to perform corrective work as noted in Conclusion of Law 5 above 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 2010-25636485 (formerly 10-2563) shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanction provided above, Respondent Julian Mortensen Sanders dba Creative Builders pay a civil penalty of $250.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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 day, April 11, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits 1, 2, 3, and 4 explain and illustrate open valley construction. [2] A CWO had also been issued in March 2010, but that CWO was superseded by the April CWO. [3] Exhibit 3 gives an Owens Corning website address at which the specifications are found. [4] Arizona Revised Statutes (A.R.S.) § 32-1155(C) prohibits citation for failure to meet workmanship standards or building codes if the contractor has not had an opportunity to inspect the jobsite within 15 days of receiving “written notice.” [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [8] There is a fair amount of correspondence from Respondent to the ROC after the complaint was filed.

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