ALJDEC decisions subject to certification as final

2010A-308472104-ROC · Registrar of Contractors · 2011-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2011

APPEARANCES: Donna Mason, Complainant; Thomas Swift, Attorney for Respondent; Rejean Dallaire, Respondent’s Qualifying Party; Stewart Punsky, Complainant’s witness; Dennis Cook, Registrar of Contractors Inspector

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint against the Respondent, the Complainant failed to establish that the Respondent’s license should be subject to any disciplinary action by the Registrar of Contractors. Therefore, it is recommended that the Citation in this matter together with the Complaint upon which it is based, be dismissed.

FINDINGS OF FACT 1. Complainant, Donna Mason, filed a complaint with the Registrar of Contractors regarding the Respondent’s performance of the parties’ contract to remove a layer of shingles from her roof and add a new layer. 2. Complainant’s complaint specified 10 items of complaint, delineated as follows: 1) Roof not stripped properly, has a wavy appearance 2) Roof still leaks in 3 places 3) Color of shingles not approved 4) Shingles sticking up 5) Nails used were not long enough 6) Three layers are against code 7) A beam was broken and not replaced 8) Flashing not done properly 9) Roof gable not done right 10) No itemized statement

3. On April 21, 2010, a Registrar of Contractors Inspector, Dennis Cook (“Inspector Cook”), conducted a job site inspection. On May 5, 2010, he issued a Corrective Work Order directing the Respondent to replace all shingles with exposed staples showing through the shingle face, check the roof for possible leaks and repair as needed. The Corrective Work Order further stated, “The balance of the items listed in the complaint were found to be properly completed as per the contract and no correction is required”. 4. The Respondent repaired the exposed staples and found no leaks. Complainant requested a hearing in the matter. 5. On February 10, 2011, Inspector Cook conducted a pre-hearing inspection during which he watered the roof thoroughly and found no leaks, though the inside of the home showed significant water damage from the prior leaks. Inspector Cook further found that Respondent had fully complied with the Corrective Work Order. 6. Complainant and her witness appeared at hearing and testified as to the many doubts they had about the workmanship on the roof. However, they offered no credible evidence of their complaints. Complainant stated that someone took a core sample of the roof and found three layers of shingles, which is against code. However, she admitted she had no written report from that exercise. Considering that shingles must overlap each other to prevent leakage, it would be natural for any given core sample of a roof with two layers of shingles to have three or four layers of material in it. Complainant offered into evidence an estimate to re-shingle the roof by Lowe’s. Handwriting on the estimate states it is a three layer job. However, Complainant offered no evidence to establish objectively that the estimate was not based on her own declaration as to the layers of roofing. Inspector Cook stated that nothing in his two inspections caused him to suspect that there were three layers on the roof. Complainant’s witness, Stewart Punsky, admitted he was there when the roof was being shingled, yet he did not suspect that there were three layers on it until it was finished and the roof looked wavy to him. 7. Complainant demonstrated at hearing a short tack that she found. However, Inspector Cook found that nails of the proper length were used on the job. 8. According to the records of the Registrar of Contractors, the license in this matter has 1 open and 3 closed complaints against it with no disciplinary history. 9. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to either lack sufficient evidence of record to support a finding of a violation or meets minimum workmanship standards. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3), (13)(specifically A.R.S. § 32-1124(B)), and (23) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. No credible evidence was offered to support finding a violation of this provision of the statute. 4. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the Registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. Other than some exposed staples, which were corrected, no credible evidence was offered to support finding a violation of this provision of the statute. 5. A.R.S. § 32-1154(A)(13) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter. A.R.S. § 32-1124(B) requires contractors to display their license number and the acronym “ROC” on the premises of their projects and on all documents they employ. No credible evidence of a violation of this provision of the statute was offered at hearing. 6. A.R.S. § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. The evidence at hearing established that the Respondent took appropriate corrective action in response to the Corrective Work Order. 7. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 8. In this case, the Complainants have not established that Respondent violated A.R.S. § 32-1154(A)(2), (3), (13), or (23) except for a minor defect, which was corrected appropriately. That violation was minor and it does not warrant the imposition of any disciplinary action. RECOMMENDED DECISION Based on the foregoing, it is hereby recommended that this Citation together with the Complaint upon which it is based, be dismissed.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the Order will be forty (40) days from the date of certification.

Done this day, February 24, 2011

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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