ALJDEC decisions subject to certification as final

2010A-308477865-ROC · Registrar of Contractors · 2011-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 9, 2011, at 1:00 p.m. APPEARANCES: Complainant Mario N. Monno appeared on his own behalf; Respondent 20th Century Roofing, Inc. appeared through Duane Leon Short, its treasurer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In September 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC104053, Class C-42 for residential roofing to 20th Century Roofing, Inc. (“Respondent”). On or about March 28, 2009, Mario N. Monno (“Complainant”) accepted Respondent’s proposal to tear off the entire roof and install a new Modified Torch rubber roof system on Complainant’s residence at 2515 East Clair Drive, Phoenix, Arizona, for a total contract price of $7,780.00. The proposal specifically excluded carpentry, masonry, and any work not specifically identified. On or about February 22, 2010, the Registrar received a complaint from Complainant regarding Respondent’s installation of the roof, alleging that the roof leaked in the garage, living room, hallway, and in the bathroom around a skylight, and that water intrusion damaged the living room ceiling. The Registrar designated Complainant’s complaint as Case No. 10- 2800. The Registrar assigned Case No. 10-2800 to its inspector, Jim Dimond, for investigation and redesignated Case No. 10-2800 as Case No. 2010-28002358. On April 13, 2010, Inspector Dimond issued a Corrective Work Order (“CWO”) in Case No. 2010-28002358, stating that water tests that had been performed on the roof had detected no leaks. The CWO required Respondent to complete its repair to the living room ceiling. The Registrar did not receive any communications from Complainant for more than six months after the CWO was issued in Case No. 2010-28002358, and the Registrar closed the complaint. On December 29, 2010, the Registrar received a second complaint from Complainant regarding the torch down flash finish around certain mechanical equipment on the roof, the walls and curbs, and the skylight in the bathroom on the roof that Respondent had installed. Complainant requested that the Registrar require Respondent to reimburse Complainant for the $2,742.22 that he had spent for repairs to the roof and interior ceiling. The Registrar designated Complainant’s second complaint as Case No. 2010- [number redacted]. The Registrar assigned Case No. 2010-[number redacted] to Inspector Dimond for investigation. Inspector Dimond did not perform a jobsite inspection in Case No. 2010-[number redacted] because another contractor had performed additional work on Complainant’s roof. Complainant requested a hearing in Case No. 2010-[number redacted]. On February 14, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(1) and (3), namely A.A.C. R4-9- 108. Respondent filed a timely written answer to the Citation and Complaint in Case No. 2010-[number redacted], denying any statutory violations. The Registrar referred Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held in Case No. 2010-[number redacted] on June 9, 2011. Inspector Dimond testified. Complainant submitted 18 exhibits and testified on his own behalf. Respondent submitted one exhibit and presented the testimony of Duane Short, its treasurer. Inspector Dimond testified consistently with the CWO in Case No. 2010- 38002358. Inspector Dimond testified that at his jobsite inspection in Case No. 2010-38002358, he had “flooded profusely” the areas of the roof that Complainant claimed leaked, but could not cause the roof to leak. In early December 2010, Complainant hired Choice Roofing Co., License No. ROC091824, Class C-42 (“Choice”) to work on the roof. Because Choice had worked on the roof when Complainant filed the second complaint to the Registrar in Case No. 2010-[number redacted], Inspector Dimond did not perform a second jobsite inspection. Complainant testified that the roof only leaked when it rained really hard. Complainant submitted numerous photographs of the roof that Respondent had installed and of Choice’s work. Complainant also submitted undated photographs of interior leaks and buckets catching the water that he testified were taken after between April 2010, when Inspector Dimond performed the jobsite inspection in Case No. 2010-28002358, and November 2010. Respondent denied that it had installed the roof over Complainant’s house in an unprofessional or unworkmanlike manner. Respondent pointed out that Choice had replaced the skylight in the bathroom and certain curbing around equipment on Complainant’s roof, and that this work was beyond the scope of Respondent’s contract with Complainant. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish cause to discipline Respondent’s license by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Although Inspector Dimond did not observe any leaks in Complainant’s roof during the jobsite inspection in Case No. 2010-28002358 in April 2010, roofs may start leaking at any time. Complainant’s decision to hire Choice to perform work on the roof in December 2010 prevented the Registrar from verifying Complainant’s complaint in this matter. Complainant’s evidence did not establish that the roof that Respondent installed leaked or that Respondent failed to complete its contract in a professional and workmanlike manner. Complainant also did not establish that leaks shown on his photographs occurred in the areas of the roof that Respondent worked on, as opposed to the skylight or curbing around equipment on the roof. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(1)[5] or (3), namely A.A.C. R4-9-108[6] in its construction of, or failure to repair, the roof on Complainant’s residence. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Case No. 2010-[number redacted] against Respondent 20th Century Roofing, Inc.’s License No. ROC104053. 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, June 28, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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