ALJDEC decisions subject to certification as final

2010A-308475244-ROC · Registrar of Contractors · 2011-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2011

APPEARANCES: Complainants appeared on their own behalf;[1] Respondent was represented by attorney Gregory Seibt, Greenberg Traurig, LLP, accompanied by employees Sandy Sweigart, Accounts Receivable, Ruben VanBogaert, Service Technician Field Supervisor, and Joel Rodriguez, Installer.

WITNESSES: Greg Koeneman, ROC Inspector Robert LeBlanc Norma Jo LeBlanc Sandy Sweigart Joel Rodriguez Ruben VanBogaert

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action alleging poor workmanship by Respondent ARS American Residential Services LLC. The complaint concerns the removal and installation of air conditioning system equipment on the roof of Complainant Norma Jo LeBlanc’s home. The Citation and Complaint issued by the Registrar of Contractors (“Registrar”) in this matter also alleges failure to follow local building code requirements, contracting beyond the scope of the license, and failure to comply with a Corrective Work Order.[2] Respondent denies the allegations. At the start of the hearing, Complainants agreed that Respondent had complied with the Corrective Work Order that had been issued by the ROC.[3] They did not pursue that allegation any further. In addition, Complainants acknowledged that roofers hired by Norma Jo LeBlanc had repaired the work done on the roof by Respondent. According to A.R.S. § 32- 1155(C)(2), no workmanship citation can be issued against Respondent for the work done on the roof because it has been modified by another contractor. This leaves only the allegation of whether Respondent knowingly contacted beyond the scope of its license. This tribunal entered the complaint file received from the Registrar into the record. The parties presented evidence and testimony at the hearing, including marked Exhibits 1 through 29. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent performed work outside the scope of its license. FINDINGS OF FACT 1. Respondent is the holder of license K-39.184045-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair air conditioning and heating systems (excluding solar) for both residential and commercial properties. The Qualifying Party for the license is Guy Boehler. 2. In February 2010, Respondent installed a new air conditioner and removed an evaporative cooler on the roof of the LeBlanc home. Underneath the cooler was a “roof jack” that one of Mrs. LeBlanc’s adult sons insisted be removed by Respondent. Respondent removed the roof jack and repaired the area by laying down plywood and tar paper to patch the hole. Respondent admits that the removal of the roof jack and repair of the roof jack hole was outside the scope of its license and should not have been done. Respondent has admitted this to Complainants and the ROC in letters immediately after the complaint. 3. After heavy rains in late July 2010, Mrs. LeBlanc’s roof leaked. When Respondent went to the site to inspect the roof a few days later, work was being done by another contractor who was re-doing the entire roof. Photographs of the roof taken at that time show that the patch that Respondent had done had been altered.[4] The photographs show the plywood part of the patch in place and nothing else. There are indications that the tar paper and roof tar had been in place and had been removed. The plywood itself has “weathered” areas on it, indicating that it has been exposed to the elements for some amount of time. There is no indication of how the tar paper was removed. 4. The photographs in Exhibit 29 show that the patch was repaired by the roofing company that was working on the roof when Respondent viewed the exposed patch in early August 2010. 5. Complainants testified that interior drywall damage that occurred during the July 2010 rains was caused by Respondent’s roof patch. Their position is that the water came through the roof because of the inadequate patch. Complainants submitted a proposal from TM Building Damage Restoration to repair the drywall for $756.01.[5] Complainants also submitted an estimate of the cost of the repair of the roof patch. 6. Respondent disputes that all of the water damage to the drywall was caused by the roof patch. Respondent speculates that water damage from roof leaks was already present before the July 2010 rains. 7. The evidence shows that Respondent performed roofing work that Respondent was not licensed to do, and that water leaked through the roof in that area. This is sufficient evidence to hold Respondent responsible for the drywall damage. The cost of the repair of the roof patch, however, is Complainants’ responsibility. If not for the insistence of Mrs. LeBlanc’s son, Respondent would not have done the patch and Complainants would have had the work done by a roofer, which they eventually did. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[8] Complainants have met that burden only with respect to the allegation that Respondent worked outside the scope of its license. 2. By performing the roof repair, Respondent violated A.R.S. § 32- 1154(A)(17) by knowingly working outside the scope of its license. 3. The water damage done in the interior of the home under the roof patch is Respondent’s responsibility. Complainants have shown that it will cost $756.01 to make repairs. Therefore, Respondent should pay restitution in that amount. RECOMMENDED ORDER IT IS RECOMMENDED that license K-39.184045-D, held by ARS American Residential Services, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has paid Complainants $756.01 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-[number redacted] shall be closed.

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 25, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Robert LeBlanc, Norma Jo LeBlanc’s son, was added as a Complainant at the hearing with no objection from Respondent. [2] There are also allegations in the Citation and Complaint concerning the required minimum elements of a contract (A.R.S. § 32-1158) and the required use of the same name that is on Respondent’s license (A.R.S. § 32- 1154(A)(15)). Warning letters about those issues have been issued to Respondent, who has acknowledged and addressed them in writing and at the hearing. No further findings regarding those issues are warranted. [3] The only correction ordered by the CWO was to obtain a permit and pass inspection by the local authority. Exhibit 9 shows that this was accomplished. [4] The photographs of the patch are marked as Exhibit 28, as supplemented by the unmarked originals, which are in the record because the copies in Exhibit 28 are not very good. [5] Exhibit 21. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

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