ALJDEC decisions subject to certification as final

2010A-308475393-ROC · Registrar of Contractors · 2011-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2011 APPEARANCES: Lisa Israel appeared personally. Castle Roofing Co., Inc. was represented by its authorized representative, Tim Newkirk. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Castle Roofing Co., Inc. (“Respondent”) is the holder of License No. 066889. a Class C-42 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 2, 2010, Lisa Israel (“Complainant”), as executor of her mother’s estate, contracted with Respondent for roof sealing and repair at her late mother’s residence located at 3394 N. Apache Plume Court, Tucson. 3. On August 24, 2010, Complainant filed a written Complaint with the Registrar seeking restitution in the amount of $866.00 for repairs to the subject roof performed after Respondent’s work. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1) and (3), namely A.A.C. R4-9-108. 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The subject roof has flat roof decks and tiled roofing. 7. Respondent’s scope of work was the following: RESEAL AND RECOAT ALL FLAT ROOF DECKS TO RESIDENCE BY; [sic] 1. Sweep and prepare roof surface. 2. Power wash all remaining debris on roof. 3. Apply crack and Joint sealer to cracks and flashings as needed. 4. 3-course seal leak over kitchen area. 5. Apply 1 coat Desert tan reflective roof coating.

[Emphasis in the original].

8. Complainant paid Respondent the sum of $1,336.87 for the above- described scope of work. 9. At the time the parties entered into their contract, Complainant was intending to sell the subject home. Complainant declined several options of repairing the roof offered by Respondent during negotiations. 10. A dispute between the parties arose later during a pending sale of the property. The buyers’ inspection resulted in additional repairs being required as a condition of closing. Complainant contacted Respondent. Complainant contends that Respondent was asked to provide a two-year warranty for its workmanship. Respondent contends that Complainant’s agent required Respondent to warranty the entire roof, including areas that Respondent did not work on. Respondent refused to provide the latter warranty, and elected not to perform any additional repairs to the subject roof. 11. Roofsavers Locke Roofing (“Roofsavers”) submitted a written proposal dated June 2, 2010, to the buyers’ realtor. Roofsavers’ scope of work was the following: ROOFSAVERS LOCKE ROOFING proposes to furnish all materials and perform all labor necessary to complete the following: 1) Seal all pipes and vents. 2) Chip out and three course seal the scupper drains.(5) 3) Install a 4x20-25 ft new roof patch to south of a/c unit cricket drain[.] 4) Caulk and seal the skylight. 5) Remove the tree debris and 3 course seal cricket roofing as needed. 6) Caulk and seal the ductwork where accessible. 7) High pressure wash the built up roof. 8) Apply one layer of TAN elastomeric coating to the built up roof. 9) TILE ROOF 10) Remove and replace two broken field tiles. 11) Mortar the hip/ridge ends as needed. 12) Price………………………………$866.00

12. Roofsavers performed the above-described scope of work. Complainant ultimately paid for that work to be performed. 13. Complainant’s request for restitution in the amount of $866.00 is not supported by the weight of credible evidence. Roofsavers’ scope of work exceeded Respondent’s original scope of work. 14. In support of her contention that Respondent’s work failed, Complainant presented a written statement by Daniel H. Beckel, the holder of License No. 207091, a Class KB-01 contracting license issued by the Registrar.[1] Mr. Beckel did not testify at the hearing. Therefore, Respondent was denied the opportunity to cross-examine Mr. Beckel as to his written statement. Nonetheless, Mr. Beckel’s written statement failed to establish that Respondent’s repairs to Complainant’s former roof were deficient. 15. The evidence of record does support Respondent’s contention that the subsequent roof damage was caused by adjacent trees. Mr. Beckel noted this possibility when he wrote that “[s]tandard maintenance should be: inspection and cleaning of debris off of roof twice a year….” Roofsavers’ proposal noted “NOT ALL TILES ARE VISIBLE DUE TO TREE DEBRIS.” Complainant failed to establish that her prior roof had been maintained to eliminate tree debris on the roof. 16. Respondent was denied access to the subject roof to view the work performed on it. According to Complainant, the current owners denied the request to view the roof. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant bears the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain her burden of proving that Respondent abandoned a project. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain her burden of proving that Respondent failed to perform its scope of work in a workmanlike manner. 5. The evidence of record does not support a recommendation to require Respondent to pay restitution to Complainant, pursuant to A.R.S. § 32- 1156.01. Complainant failed to sustain her burden of proving that the scope of work performed by Roofsavers resulted from deficient workmanship by Respondent. In addition, the scope of work performed by Roofsavers, for which Complainant seeks restitution, included work beyond the scope of Respondent’s work. RECOMMENDED ORDER The Citation and Complaint in 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this matter. 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 28, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A review of the Registrar’s official electronic licensing records reveals that La Posada At Park Centre, Inc. is the holder of License No. 207091. Mr. Beckel is the qualifying party for the licensee. Also named on the license is Lisa Hirsch Israel. It is unclear if Lisa Hirsch Israel and Complainant are one and the same.

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