ALJDEC decisions subject to certification as final

2010A-308471992-ROC-res · Registrar of Contractors · 2012-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its attorney, Angela Potts, Esq., Potts & Waldron, P.C. Respondent appeared through its authorized representative, Michael Allen Cohen. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License C-42.124027-R issued by the Registrar of Contractors. 2. The Order Reopening Complaint and Setting Administrative Hearing provides, in pertinent part, as follows: On September 29, 2010, the Registrar issued an Order of Closing in this matter in accordance with the Administrative Law Judge’s Order Vacating Hearing.

On or about July 7, 2011, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Complainant “would like to reopen case #2010- [number redacted]. This request is due to non compliance of the mutual agreement signed by all parties and submitted to the court on April 5th, 2011.”

On July 19, 2011, the Registrar sent Respondent a copy of Complainant’s Request to Reopen providing Respondent an opportunity to file a Response thereto. On or about July 27, 2011, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “has submitted several proposals, emails and specifications from the material manufacturer for approval to complete repair work [;] all of which have been rejected.”

Upon review and consideration of Complainant’s Request to Reopen, Respondent’s Response, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that Case No. 2010-[number redacted] be REOPENED. IT IS FURTHER ORDERED that a [sic] Administrative Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Administrative Hearing, the parties may offer evidence and testimony as to whether or not Respondent has engaged in conduct in violation of A.R.S. § 32- 1154(A)(23) and (3), namely R4-9-108, as set forth in the Citation and Complaint and further breached the terms set forth in the parties’ Settlement Agreement. If the assigned Administrative Law Judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting law that may have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement.[1]

3. On or about March 23, 2009,[2] Respondent represented to Complainant that it had completed the installation of new roofs on Complainant’s buildings. 4. Complainant was extremely dissatisfied with the appearance of the new roofs and retained a roofing consultant to inspect Respondent’s workmanship. 5. The selected roofing consultant, identified as Professional Roof Management, LLC, (“PRM”), conducted an onsite inspection of Respondent’s roofing work and on March 4, 2010,[3] issued a written report stating that Respondent’s workmanship and application procedures were very poor and did not meet the manufacturer’s requirements. PRM recommended that the parties request that the manufacturer inspect the roofs at issue and develop a deficiency list for each roof so as not to jeopardize the manufacturer’s warranty.[4] 6. Complainant then furnished Respondent with a copy of the written report by PRM and requested compliance with the recommendations in the written report. 7. When Respondent failed to comply with the recommendations set forth in the written roofing report, Complainant filed a formal Complaint against Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection of Complainant’s roofs. On June 8, 2010, the Agency Inspector issued a written Corrective Work Order directing Respondent to perform designated corrective work on the roofing work at issue. 9. The Corrective Work Order provides, in pertinent part, as follows: On the following complaint item [sic], the Respondent is to correct by appropriate means and per the Manufacturer’s specifications regarding installation and repairs to roofing covering material used on these structures listed in this Corrective Work Order.

Complaint #1 – Complete installation to match contracts; #1A – BLD #25 – After reviewing the contract and the completion date of this contract, This Inspector found that it is beyond 2 years. Lack of jurisdiction. No Action. #1B – BLD #8 – Respondent had completed the work but found some violations regarding workmanship. S/W corner material edge is coming up. S/W corner of pitch roof is pulling apart. S/E pitch roof at transition to flat roof on West side not sealed, coming apart. T-tops (vents) are not sealed Note: Respondent stated during this job sit [sic] inspection that they will check all vent pipes coming up through the roofing material and re-seal as needed on all buildings listed in this complaint. #1C – BLD #5 - Respondent had completed the work but found some violations regarding workmanship. S/E section of roof; found lap that is not sealed. S/W Comp roof shingle ridge flashing not secured properly. Note: Color of metal flashing is to match (Brown) [sic] on all pitched roofs on top of flat roofs of all buildings listed in this complaint. #1D – BLD #38 - Respondent had completed the work but found some violations regarding workmanship. The edge material around this roof is coming up. The Respondent stated during this job site inspection that they will apply a new type of edging material on this roof to correct this problem. Found roofing nail heads exposed on top of GenFlex material. The Respondent is to patch these areas per the manufacturer’s specs. Also the Respondent is to confirm with the manufacturer that the square patches applied to the roofing material is per the manufacturer’s specs on all buildings in this complaint. All T-tops vent covers are not sealed or clamped off. The pitched roofs, the metal flashing is not properly secured and is not uniformed with the color (brown) with the other roofs and the corners are not sealed #1E – BLD #39 – Respondent had completed the work but found some violations regarding workmanship. Vent pipe in the center (south side) of the roof there is a gap in the boot material covering the roof. The edge material around this roof is coming up. The Respondent stated during this job site inspection that they will apply a new type of edging material on this roof to correct this problem On the S/W side next to the pitch roof, there is a seam at is not properly sealed and patched. On the S/E pitched roof, the metal flashing is not properly secured and is not uniformed with the color (brown) with the other roofs and the corners are not sealed properly. North pitch roof, asphalt shingles are not uniformed along the edges and 1 shingle is missing All T-tops vent covers are not sealed or clamped off. #1F – BLD #24 -Respondent had completed the work but found some violations regarding workmanship. The West and East pitched roofs termination cap are not properly secured, At the center of the roof, the seam has pulled apart. On the West pitched roof at the transition point, there is a seam lap that is not properly sealed. Note: The edge tape material around the roof is not properly applied; need to smooth out the ripples in the material. #1G – BLD #23 - Respondent had completed the work but found some violations regarding workmanship. At the S/W corner of the roof, the roofing material is over hanging the edge. Not uniformed. On the S/E pitched roof at the transition point, the seam lap is not sealed. On the patio roof cover at the south corner, roofing material is not properly sealed. There is excessive glue left on the roofing material. Found roofing nails exposed on top of the roofing material, need to patch these areas per manufacturers specs. #1H – BLD #32 - Respondent had completed the work but found some violations regarding workmanship. N/W corner is not properly sealed. On the south side edge of roof there is a knife cut in the roofing material that is not properly repaired. At the East pitched roof along the transitions seam; lap is not properly sealed. On the East pitched roof; the asphalt shingles that over lap the flat roofs material are not installed in a uniformed manner. #1I – BLD #29 - Respondent had completed the work but found some violations regarding workmanship. On the East side of patio; seam is not properly sealed or secured. N/E corner edge not sealed or secured. N/W patio, the edge material is pulling away from the roof, not secured. Found roofing nails exposed on the West side of roof along edge of fascia board; not repaired per manufacturer’s specs. S/W edge of patio, roofing material is not secured properly. S/W to East edge, roofing material has pulled away from the roof. East seam below the pitched roofs overhang, there is an opening in the roofing material. S/E pitched roof, there is a seam that has pulled loose; not sealed properly. Complaint #2 – Disclose manufacturer of single ply system used on roof. The ROC has no jurisdiction over how a Contractor conducts their business with their customers. However, the Respondent had given this information to the Complainant prior to this job site inspection. Complaint #3 – Have manufacturer of materials inspect roofs and supply HOA with manufacturers limited lifetime warranty. The ROC has no jurisdiction over how a Contractor conducts their business with their customers. However, the Respondent had the manufacturer’s representative present during this job site inspection and the parties were discussing the Complainant’s warranty issues. Complaint #4 – Inform HOA manager date and time the contractor will be on the property to complete the work. The ROC has no jurisdiction over how a Contractor conducts their business with their customers. Complaint #5 – Reimbursement for roofing consultant fee’s in the amount of $350. It is beyond the jurisdiction of this Inspector to determine if monetary damages are appropriate or not. From a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.

10. When Respondent failed to comply with the terms of the Corrective Work Order, Complainant requested an administrative hearing. The matter was then scheduled for an administrative hearing on March 29, 2011. 11. During the March 29, 2011 administrative hearing the parties entered into a Settlement Agreement and on April 8, 2011, Administrative Law Judge, Eric A. Bryant, issued an Order Vacating Re: Settlement based upon the parties’ written Settlement Agreement. 12. The parties’ written Settlement Agreement provides, in pertinent part, as follows: 1) Capital Roofing is willing to maintain and correct the ten roofs that were installed at Casitas Tempe. 2) All work is to be completed per the “Corrective Work Order” supplied by the AZROC on 6-8-2010 as well as the additional items that Capital offered during the negotiation process. 3) The inspection report supplied by PRM will be used in conjunction with the “Corrective Work Order” to repair all outstanding workmanship issues. 4) Capital Roofing will supply Casitas Tempe with a written corrective plan. This plan is to include how the repairs will be made in compliance to the manufacturer [sic] roofing specifications and said roofing specifications will be outlined. In particular there will be specifications regarding patches and edging. This document will be turned over to Casitas Tempe by May 1st, 2011 prior to completing any repairs. 5) After the written corrective plan is turned over to Casitas Tempe, all corrective work will be done within 45 days by Capital Roofing. 6) Capital Roofing will notify Karen (property manager Casitas Tempe) of when roofers will be on property via email: [email redacted]. 7) Capital Roofing will also have 45 days to supply manufacturer warranties of 10 years made out to the association. They will be started from the date of installation. 8) After work orders have been fulfilled, a final walk through will take place that needs to include a representative from each party. If any outstanding issues remain, Capital will be allotted an additional 15 days to repair the issues. Casitas Tempe will verify that work has been completed. 9) The “Corrective Work Order” will be used for the final inspection. 10) If all of the above is honored and corrected, Casitas Tempe will gladly drop the complaint filed with the ROC against Capital Roofing.

13. Pursuant to the terms of the Order Reopening Complaint and Setting Administrative Hearing, the assigned Agency Inspector performed a pre- hearing Compliance Inspection on June 6, 2012, at 2:00 p.m. The Inspector reviewed all of the items set forth on the Corrective Work Order and stated that it had been approximately two years since the Corrective Work Order had been issued and that Respondent had still not fully complied with the terms of the Corrective Work Order.[5] 14. Respondent’s representative, Michael Allen Cohen, testified that Respondent was unable to locate the specifications for the edging repair as required in the parties’ Settlement Agreement until the night before the hearing.[6] 15. The president of the homeowners’ association (“HOA”) for Tempe Casitas, Michael Hacker, testified that he had not seen the proposed specifications for the edging repair for Complainant’s roofs until the day of the hearing. He stated that he had reviewed the edging details presented by Respondent and did not believe that the edging details[7] provided by Respondent were applicable because the roofs at issue did not have parapet walls and did not have the same type of metal edging as set forth in the details for the proposed edging repair.[8] 16. Complainant’s property manager, Karen Shofron, testified that she asked for specific details for the agreed upon roofing repairs and that Respondent failed to provide the requested specific details. She stated that she went on the GenFlex website and was able to find details for the proper correction of the roofs at Tempe Casitas.[9] 17. Lora Lee Ollarsaba testified that she is an employee of Respondent and that she was responsible for email contact between Respondent and Complainant. She stated that she contacted the manufacturer on numerous occasions and repeatedly attempted to obtain the specific details requested by Complainant.[10] 18. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate disciplinary action against the contractor’s license. 19. Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the parties’ Settlement Agreement and the Corrective Work Order issued in this matter. On the contrary, credible evidence established that Respondent has repeatedly failed to fully comply with the terms of the Corrective Work Order and the parties’ Settlement Agreement. Respondent’s lackadaisical efforts appear to have been directed to delay and excuse, rather than achieve, compliance with the terms of the parties’ Settlement Agreement and the Corrective Work Order.

20. Although the Registrar of Contractors often allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to prolong this matter further. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor of Complainant’s choice, and at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order and the parties’ Settlement Agreement. 21. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on June 25, 2012. Such prior license record reflects that License No. C-42.124027-R of Capital Roofing Inc is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence presented during the hearing supported findings which establish that Respondent failed to fully comply with the terms of the parties’ Settlement Agreement and that Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. This tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A) (3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner), A.R.S. § 32- 1154(A)(23) (failure to take appropriate corrective action), and the terms of the parties’ Settlement Agreement. RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 42.124027-R of Capital Roofing Inc (Corp), shall be immediately suspended until the Registrar of Contractors receives, and accepts, written proof that Respondent has, at Respondent’s sole expense, caused a properly licensed roofing contractor of Complainant’s choice to fully comply with the terms of the Corrective Work Order and the terms of the parties’ Settlement Agreement. It is further recommended that if Respondent, utilizing a properly licensed contractor of Complainant’s choice and at Respondent’s sole expense, causes the full accomplishment of the above described corrective action on or before the effective date of this Order, then the above provided License suspension shall be lifted and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154 (D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such 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 tendered. In the event of certification of this 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 the certification. Done this day, June 27, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] August 16, 2011 Order Reopening Complaint and Setting Administrative Hearing. [2] Completion date on Complaint Form. [3] Exhibit C-7, (March 4, 2010, written report of Professional Roof Management, LLC). [4] Exhibit No. C-7 (March 4, 2010, written report of Professional Roof Management, LLC).

[5] 6-7-12 Hearing Record (hereinafter “H.R.”) at 21:36-22:58. [6] H.R. at 36:31-40:36. [7] Exhibit No. F (Detail for GenFlex Gravel Stop/Drip Edge Termination). [8] H.R. at 54:30-58:40. [9] H.R. at 1:30:40-130:55. [10] H.R. at 2:09:42-2:26:34.

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