ALJDEC decisions subject to certification as final

2010A-308475195-ROC · Registrar of Contractors · 2011-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2011

APPEARANCES: Complainant appeared and participated by telephone on his own behalf; Respondent was represented by attorney Rick Carter, accompanied by Qualifying Party Steve Forstie.

WITNESSES: Mark Alyea, ROC Inspector Chris Karch Todd McGraw, McGraw Mobile Detail Kyle Koistinen, Respondent’s Production Manager

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship. The claims against Respondent concern roofing work by Respondent at Complainant’s home. Respondent denies the allegations. The only issue cited in the Citation and Complaint issued by the Registrar of Contractors for this case concerns workmanship and that is the only issue addressed herein. The day before the hearing, Complainant filed a letter stating that he had been recently diagnosed with a contagious infection and asking for a continuance. There was insufficient time to address the letter before the close of business. At the time for hearing the next day, Respondent and counsel appeared in person with witnesses, and Complainant was contacted by telephone. The continuance request was addressed briefly, but Complainant stated that he wanted the hearing to go forward immediately with his participation by telephone.[1] Therefore, the hearing proceeded as scheduled with Complainant participating by telephone. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license C-42.223899-R issued by the Registrar of Contractors (“ROC”). It is a specialty residential contracting license that authorizes Respondent to install and repair roofing materials for residential properties. The Qualifying Party on the license is Steve Forstie. 2. In May 2010, Complainant hired Respondent to apply a foam roof to the flat roof on Complainant’s home. Respondent performed the work. In August 2010, Complainant filed a complaint with the ROC, alleging poor workmanship in the application of the foam to the roof and claiming that Respondent allowed foam overspray on three vehicles, two of which were owned by Complainant and one owned by his sister. 3. ROC Inspector Mark Alyea performed a jobsite inspection on October 15, 2010. He inspected the roof and found no workmanship issues with the application of the foam to the roof. He issued a letter stating that he found no substandard workmanship with the roof and that no Corrective Work Order would be issued. The letter informed Complainant that he could request a hearing to challenge those findings. Complainant did so. 4. Complainant did not submit evidence in rebuttal of the ROC Inspector’s findings. Neither the complaint file nor any other evidence contains a contradictory opinion about the workmanship of the roof. Complainant’s claim instead focuses on the alleged damage to the three cars. Therefore, the Administrative Law Judge finds that evidence does not show any workmanship violation with respect to the application of the foam to the roof. 5. Complainant testified that he received verbal permission from Respondent’s representative Kyle Koistinen to have the cars “detailed” by Hot Shots Auto Wash (“Hot Shots”), which he did on June 4, 2010, at a total cost of $630.00. Kyle Koistinen denies that he gave such permission and testified that he did not speak with Complainant about the overspray on the cars until a few days after June 4, 2010, when Complainant had already taken the cars to Hot Shots. 6. Complainant claims that the overspray caused “chemical damage” to all three cars’ paint and that all three need to be repainted. He has received and submitted estimates that total over $10,000.00. The estimates do not document or describe the damage that Complainant alleges, and also include an amount that estimates repair of some unrelated collision damage that occurred to one of the cars. Without much foundation or reliability, the estimates are given little weight. 7. Todd McGraw, owner of McGraw Mobile Detail, testified that he is an experienced car detailer (24 years) that Respondent hires to remove overspray on cars in circumstances such as Complainant’s. He described the process that he uses to remove foam overspray on car surfaces. He testified that he has been successful in removing the foam overspray on each car that he has done for Respondent. He also testified that the overspray does not damage the paint. The Administrative Law Judge finds that Mr. McGraw has expertise in his field and gives his testimony great weight. 8. Given the testimony of Mr. McGraw and the lack of weight given to Complainant’s documentation concerning the paint on the cars, the evidence does not show that the foam overspray damaged the paint on the three cars or that the three cars need to be repainted due to the overspray. 9. The only issue remaining is the claim that Respondent must reimburse Complainant for the initial detailing of the three cars. The evidence does not show by a preponderance that Complainant received permission from Respondent to take the cars to Hot Shots. Therefore, the reimbursement claim also fails.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has not met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule A.A.C. R4-9-108 (prohibiting poor workmanship). No other statutory violation is cited. 3. The evidence does not show that Respondent violated the cited provision for the following reasons: 1) the workmanship on the roof was found by the ROC Inspector to be adequate and those findings were not contradicted by competent evidence; 2) the evidence does not show that the foam overspray damaged the paint on the three cars; and 3) Respondent was not given an opportunity to remove the overspray damage through its own agent (Mr. McGraw). The evidence shows that Mr. McGraw would have removed the foam overspray from the three cars had Complainant waited to discuss the matter with Respondent’s representative. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Durafoam Roofing, LLC be dismissed.

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, May 9, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] He stated that he had photographs to put into evidence and was told that he would not be able to do so if the hearing went forward that day. He acknowledged that, but still wanted to go forward. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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