ALJDEC decisions subject to certification as final

2011A-1127-ROC-com · Registrar of Contractors · 2013-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2012, at 8:00 a.m. and February 19, 2013, at 1:00 p.m. APPEARANCES: William C. Lohmeier (hereinafter “Complainant”) appeared through his attorney, Michael J. Vingelli, Esq., Vingelli & Errico Law Office. Reed Enterprises Inc dba Roof Wizard (hereinafter “Wizard”) appeared through its attorney, Erick Hawkins, Esq., Durazzo, Eckel & Hawkins, PC. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provided, in pertinent part, as follows: On October 24, 2011, the Registrar issued an Order in this matter providing that Respondent’s C-42.119568-R License would be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had fully complied with the terms of the written Corrective Work Order issued in this matter and that Respondent had fully complied with the provisions of A.R.S. § 32-1124(B). If Respondent provided acceptable proof to the Registrar that it had fully accomplished the corrective action, on or before the effective date of the Order, then Respondent’s C-42.119568-R License would not be suspended. Respondent was further ordered to pay a civil penalty in the amount of $500.00 on or before the expiration of thirty (30) days from the effective date of the Order or risk the automatic revocation of its License. The Order had an effective date of December 3, 2011.

On or about November 28, 2011, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent has “complied with the [O]rder” and “completed the work order on [C]omplainant’s residence.” The Registrar treated this as a Notice of Compliance.

On or about that same date, Respondent submitted payment to the Registrar in the amount of $500.00 for the civil penalty in accordance with the terms of the Registrar’s October 24, 2011 Order.

On or about December 5, 2011, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Complainant and his wife “do not accept the recent roof repairs made by Reed Enterprises DBA Roof Wizard.” Complainant further maintained that he did “not want the company to perform any further work on his property.”

On or about December 12, 2011, Complainant submitted additional written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “did not replace damaged areas such as the water damaged plywood or the roof crown.” [Complainant] further maintained that due to Respondent’s poor corrective work, on December 3, 2011, the repairs failed during a steady rainfall and water leaked through the roof and ceiling in multiple places.

On or about December 13, 2011, Complainant submitted additional written correspondence in this matter with the Registrar providing that Respondent’s repair work “caused [breaks] in the roof, allowing multiple new entry points for rainwater to penetrate into [his] home.” Complainant requested that the Registrar set a Compliance Hearing in this matter in the expedited course of scheduling.

Upon review and consideration of the submissions referenced above, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Tucson area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has failed to comply with the Registrar’s October 24, 2011 Order, absent unreasonable interference by Complainant. If it is determined that Respondent has failed to fully comply with the terms of the October 24, 2011 Order, absent unreasonable interference or denial of access on the part of Complainant, then Respondent’s C-42.119568-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent has fully complied with the terms of the October 24, 2011 Order or that Complainant has unreasonably denied Respondent access to fully comply with the terms of the Order, then this matter shall be closed, and no further discipline imposed upon Respondent’s C-42.119568-R License.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

Note: Complainant is not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it fully complied with the terms of the October 24, 2011 Order.

2. The assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), performed a pre-hearing Compliance Inspection on August 29, 2012. Inspector Grochocki testified that he performed a water test on Complainant’s roof and observed no leaking. Inspector Grochocki stated that he observed no buckling on Complainant’s roof. Inspector Grochocki testified that he observed extensive patching on Complainant’s roof. Inspector Grochocki testified that the extensive patching was not in compliance with applicable workmanship and industry standards. Inspector Grochocki opined that the roof as corrected by Wizard is not in compliance with the terms of October 24, 2011 Order of the Registrar. Inspector Grochocki stated that Complainant’s roof requires further corrective action but does not require removal and replacement.[1] 3. Inspector Grochocki stated that he had not reviewed the manufacturer’s specifications for the installation of the roof. Inspector Grochocki testified that his inspection was based on his general knowledge of applicable workmanship and industry standards. Inspector Grochocki stated that his pre-hearing Compliance Inspection lasted approximately twenty minutes. Inspector Grochocki testified that the water test that he performed on Complainant’s roof took approximately ten to fifteen minutes to complete. Inspector Grochocki testified that he had an extensive background in roofing, although he did not consider himself to be an expert in roofing, and a lifetime of experience in construction work. Inspector Grochocki stated that he had “built a couple of thousand homes.”[2] 4. Inspector Grochocki stated that 100% of the Complainant’s roof had patching on it. Inspector Grochocki testified that he believed the entire roof needed to be “re-lathed.”[3] 5. Inspector Grochocki’s testimony is found to be credible. 6. Louis Amaya (hereinafter “Mr. Amaya”) testified that he is a certified moisture technician. Mr. Amaya stated that he works for Paul Davis Restoration & Remodeling of Tucson.[4] Mr. Amaya testified that he performed an onsite inspection at Complainant’s residence on December 13, 2011. Mr. Amaya stated that the testing he performed established that there was water penetration from the Complainant’s roof into Complainant’s residence in the ceiling and walls of the living room, the ceiling of the kitchen, the ceiling and walls of bedroom no. 1, the ceiling and walls of bedroom no. 2, and the ceilings of the master bedroom and master bathroom.[5] 7. Rick Hunsaker (hereinafter “Mr. Hunsaker”) testified that he is a licensed contractor in the State of Arizona.[6] Mr. Hunsaker stated that he does not work as a contractor. Mr. Hunsaker testified that he works as a professional roofing consultant. Mr. Hunsaker stated that he is recognized as a roofing expert. Mr. Hunsaker testified that he performed an onsite inspection on Complainant’s roof on December 14, 2011. Mr. Hunsaker stated that that the large lateral roof repairs performed by Wizard on the buckled areas of Complainant’s roof were improperly performed. Mr. Hunsaker testified that Wizard had cut out all of the buckling on Complainant’s roof and then applied large lateral repair strips that created drainage restrictions on Complainant’s roof. Mr. Hunsaker stated that he was present for Inspector Grochocki’s water test on Complainant’s roof. Mr. Hunsaker testified that he performed “moisture scans” on Complainant’s roof and observed that there were extensive indications of water penetration throughout the repaired roof. Mr. Hunsaker stated that he made a small cut into one of the repaired areas on Complainant’s roof and observed that water had penetrated through the repaired area of the roof. Mr. Hunsaker opined that Complainant’s roof system had “absolutely failed” and that the roof system required removal and replacement.[7] 8. Complainant testified that his roof leaks. Complainant stated that he has covered his roof with plastic and sandbags to prevent further damage to his residence. Complainant testified that he believed that the roof system on his residence should be removed and replaced by a contractor other than Wizard. Complainant stated that he does not believe that Wizard can properly correct his roof. Complainant testified that Wizard has not offered to perform any repairs on his roof since December 2011. Complainant stated that the only repair that he was willing to accept was removal and replacement of the roof system on his residence.[8] 9. Carrie L. Amway (hereinafter “Ms. Amway”) testified that she knew Complainant. Ms. Amway stated that Complainant’s wife asked her to see a roof leak in Complainant’s residence. Ms. Amway stated that she personally observed water leaking into the interior of Complainant’s living room on December 4, 2011.[9] 10. Wizard’s Qualifying Party, Robert C. Reed (hereinafter “Mr. Reed”), testified that there were major buckles on Complainant’s roof. Mr. Reed testified that “if it was up to him he would have left the buckles alone.” Mr. Reed stated that Complainant’s roof does not require removal and replacement. Mr. Reed testified that he had not offered to perform any additional corrective action on Complainant’s roof. Mr. Reed then stated that he did know about the written offer to perform additional corrective work on Complainant’s residence proffered to Complainant by Wizard’s attorney. Mr. Reed stated that he believed that Complainant’s residence had a venting problem. Mr. Reed testified that the lack of proper venting caused the buckling in the new roof. Mr. Reed acknowledged that Complainant’s roof leaks.[10] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Inspector Grochocki opined that the roof as corrected by Wizard is not in compliance with the terms of October 24, 2011 Order of the Registrar. Mr. Hunsaker testified that he performed “moisture scans” on Complainant’s roof and observed that there were extensive indications of water penetration throughout the repaired roof. Mr. Reed acknowledged that Complainant’s roof leaks. This Tribunal concludes that Wizard failed to fully comply with the terms of the October 24, 2011 Order of the Registrar. 4. Complainant was not obligated to allow access to Wizard or its representatives to perform any further corrective work prior to the Compliance Hearing after Wizard notified the Registrar that it had fully complied with the terms of the Registrar’s October 24, 2011 Order. There was no credible evidence that Complainant unreasonably denied Wizard or its representatives access to his residence before Wizard notified the Registrar that it had fully complied with the terms of the Registrar’s October 24, 2011 Order. 5. The Registrar’s October 24, 2011 Order provided, in pertinent part, as follows: 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.

6. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. RECOMMENDed order In view of the foregoing, it is recommended on Compliance Hearing, that License No. C-42.119568-R of Wizard shall be suspended for a period of thirty (30) days and that Complainant, if found to be otherwise eligible, be given access to the Residential Contractors’ Recovery Fund to recover his damages.

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, March 7, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/19/13 Hearing Record (hereinafter “H.R.”) at 8:22-11:25. [2] H.R. at 11:26-20:29. [3] H.R. at 20:30-27:47. [4] Paul Davis Restoration & Remodeling of Tucson (ROC License Nos. B.143845-R and B2.148301-C). [5] H.R. at 27:50-34:55. [6] Absolute Roofing Solutions LLC (ROC License No. K-42.216367-D). [7] H.R. at 35:07-1:32:15. [8] H.R. at 1:33:20-1:49:16. [9] H.R. at 1:49:50-1:50:46. [10] H.R.at 1:51:00-2:14:02.

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