ALJDEC decisions subject to certification as final

2010A-882047-ROC · Registrar of Contractors · 2010-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2010

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Shawn D. Garner, accompanied by corporate representatives Andrew and Stephen Lundgreen.

WITNESSES: Darrell McCloskey, ROC Inspector James Howard Andrew Lundgreen Stephen Lundgreen

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This action is brought, based on Complainant’s complaint regarding Respondent’s construction workmanship on his roof, to determine if Respondent has failed to meet minimum workmanship standards and if Respondent has failed to comply with a written directive issued by the Registrar of Contractors. Respondent denies all allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with pre-marked exhibits submitted by both parties. 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 Lines and Lundgreen Roofing and Insulation, Inc. is the holder of a class C-42 license (No. 069354), a specialty residential contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform installation and repair of roofing systems for residential properties. John Lines is Respondent’s Qualifying Party. Stephen Lundgreen is Respondent’s Vice President. Andrew Lundgreen is a Supervisor for Respondent. 2. After storm damage to the roof of Complainant’s residence, Complainant hired Respondent to perform repairs in late 2009. Respondent performed work and Complainant was not happy with the result. Complainant filed an ROC complaint, identifying several items of concern. 3. In February 2010, the roof was inspected by ROC Inspector Daryl McCloskey, who later issued a Corrective Work Order (CWO) identifying six areas that needed further repair work (1—seal north side shingles, 2—remove tar on satellite dish, 3—secure shingles at patio roof, 4--repair/replace damaged shingles on north side, 5—repair patio rolled roof section on west side, 6—repair ridge cap installation) and one that did not (7—excessive tar on north side). Respondent performed corrective work. On July 22, 2010, Inspector McCloskey went back to the site for a pre-hearing inspection. He inspected all the CWO items and found that the items met minimum workmanship standards at that time and that no further corrective work was needed, which he testified to at the hearing. 5. At hearing, Complainant presented numerous photographs of the roof, showing its condition. However, Complainant failed to present evidence as to what workmanship standards were relevant to the roof items and whether or not those standards were met. The only evidence about those issues came from the ROC Inspector and Respondent. 6. The evidence shows that Complainant has walked on the roof numerous times since Respondent’s repair work and may have caused damage to the roof. 7. Respondent presented testimony from Andrew Lundgreen and Stephen Lundgreen, who both testified that Respondent has repaired the roof according to workmanship standards. This is consistent with Inspector McCloskey’s testimony. 8. The evidence does not show by a preponderance that the roof, as repaired by Respondent, fails to meet minimum workmanship standards. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] 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.[3] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence submitted shows that the roof meets minimum workmanship standards. No witness with experience and knowledge of the applicable workmanship standards testified that conditions exist on the roof that fall below those standards. 4. Because Respondent corrected the CWO items, Respondent has complied with the CWO. 5. There being no violations, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-882047 (formerly Y10-0088) against Respondent Lines and Lundgreen Roofing and Insulation, Inc. 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, August 27, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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