ALJDEC decisions subject to certification as final

2011A-1127-ROC · Registrar of Contractors · 2011-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Robert C. Reed. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class C-42 (119568) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new roof on the Complainant’s residence. 3. The Complainant was extremely dissatisfied with the Respondent’s workmanship on the new roof and requested that the new roof be properly corrected. 4. Credible testimony and evidence established that the parties then engaged in extensive discussions on whether the Complainant’s roof was within workmanship standards and the extent of corrective work, if any, that was required to correct the new roof. 5. When the parties were unable to resolve their dispute regarding the new roof, the Complainant retained an independent roofing expert to conduct an onsite inspection of his new roof. 6. The Complainant’s roofing expert then inspected the Complainant’s roof and issued a written report recommending that the only proper correction for the Complainant’s roof should be the complete removal and replacement of the roof. 7. The Complainant then requested that the new roof be removed and replaced. When the Respondent refused to remove and replace the new roof, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on March 8, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. The Corrective Work Order provides, in pertinent part, as follows: #1 “Large area of excessive moisture content near the laundry room.” The moisture or its possible cause could not be witnessed first hand at inspection. No action required.

#2 “Damaged plumbing pipes….venting into structure.” (See #1) No visible cracks or damage could be observed at inspection. No action required

#3 “Extensive buckling.” Several areas of buckling were observed at this inspection. Contractor to correct according to jobsite agreement.

#4 “Insufficient number of roof plies.” The site where the inspection was done by Absolute Roofing Solutions was patched prior to inspection and number of plies could not be observed. The respondent [sic] agreed to do core testing and make corrections as necessary. Contractor to correct according to jobsite agreement.

#5 “Flashing and/or membrane installation at several detail areas …very poorly installed.” The inspection did not find any defects in the flashing around jacks and appeared to be done according to industry standards. No action required

#6 “Perimeter metal flashing also appeared to be poorly flashed.” The fiberglass membrane was broken at metal edge joints and coating appeared to be thin. Contractor to correct by appropriate means.

From a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.

10. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 11. There was no credible evidence of any unreasonable denial of access by the Complainant. 12. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s new roof fails to comply with applicable workmanship and industry standards and requires proper correction. 13. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of correction nor is the method of correction left up to the individual homeowner. Instead, the method of correction is left up to the licensed Respondent, which makes such decision as to the appropriate method of correction at its peril. 14. A homeowner need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. Although the facts presented herein do not justify a departure from a long- standing policy of the Registrar of Contractors to allow a contractor an opportunity to correct construction deficiencies which are determined at a hearing, the Respondent is on notice that it will have one, and only one, final opportunity to correct the deficiencies set forth in the Corrective Work Order issued in this matter. 15. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of the new roof on his residence are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary corrective work on the Complainant’s roof. 16. The credible testimony and evidence of record established that the Respondent failed to comply with the applicable provisions of A.R.S. § 32- 1124 (B), which require that the license number appearing on any licensed held by a licensee be preceded by the acronym “ROC” and be placed on all written bids, advertising, letterheads and other documents used by the licensee. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans, specifications or any building codes in the installation of the roof on the Complainant’s residence. 18. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B), (display of license), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 5. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter and that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B). It is further recommended that if the Respondent properly accomplishes the above described corrective actions, on or before the effective date of this Order, then the above provided License suspension shall not take place, and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, September 30, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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