ALJDEC decisions subject to certification as final

2011A-1212-ROC · Registrar of Contractors · 2011-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2011

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife, Eileen Simmons; Respondent was represented by authorized employee Andy Schaeffer, Production Manager.

WITNESSES: Jim Hennessy, ROC Inspector Donald Simmons Eileen Simmons Andy Schaeffer

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order pertaining to work on his shingle roof. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony from the witnesses above 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 is the holder of license B.258318-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Forest Wright is the Qualifying Party. 2. Respondent put a new roof (new felt and shingles) on Complainant’s house in December 2010. In February 2011, Complainant filed a complaint with the ROC that listed eleven items in need of correction. ROC Inspector Jim Hennessy inspected those items and, by issuance of a Corrective Work Order (“CWO”) dated March 21, 2011, ordered corrective work to be done. 3. Respondent performed corrective work. At hearing, Complainant stated that only items 1 (scope of work in contract), 2 (damage to interior hallway), 4 (roof leaks),[1] 5a (bubbles in the patio flat roof), 5b (nails showing through overhang), and 7 (damage to pool) needed to be addressed. Andy Schaeffer testified that Respondent has already corrected some of the items and will correct the others if ordered to do so. Respondent does not agree to correct item 1 because it would require installation of a new roof. Complainant stated that unless the ROC orders Respondent to correct item 1, he will not allow Respondent back on the property to do any other items. Thus, item 1 is the chief disagreement between the parties. 4. Item 1 is Complainant’s claim that Respondent contractually agreed to remove all old roofing material down to the plywood, thus removing all old felt. The written contract does not specifically state the scope of work that Complainant claims. It states that Respondent will “tearoff” one layer of the roof and will “clean and prepare deck.” 5. Complainant testified that he told Respondent’s salesman that he wanted all the old felt to be taken off so that he could check the plywood for damage and replace it if necessary. That was his understanding about what Respondent was going to do. However, as noted, that directive is not stated in the written contract. During the job, Complainant noticed that the workers were not taking the old felt off and informed a supervisor. The supervisor talked to the workers and they started taking the old felt off. Complainant testified that when the supervisor left the site, the workers returned to not removing the old felt. He testified that the roof on the rear of the house has old felt underneath the new felt. He claims that Respondent did not fulfill the contract because it did not remove the old felt. He wants the old felt removed from the rear roof. 6. Complainant also testified about nails and other debris that fell into his pool and caused damage to it. He further testified about interior hallway damage that he believes occurred when Respondent’s employees lifted the A/C unit off the roof. 7. Andy Schaeffer testified for Respondent. Because he was not the supervisor on the job and was not present when the work was being done, he has only limited knowledge of the facts. He did not dispute responsibility for the pool damage or the interior hallway damage. 8. The evidence does not show that Respondent had a legal duty to remove the old felt. The contractual language does not require that action nor has Complainant shown that workmanship standards require removal of the old felt. 9. The evidence does show that nails are showing under the overhang and that nails fell into the pool and damaged it. Those items needed to be corrected. Respondent was willing to correct those items if given access to the property by Complainant. 10. Complainant made it clear that he does not want Respondent to do further work unless a new roof is ordered under item 1. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] 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. The evidence does not show violation of (A)(3) or (A)(23). 3. Because Complainant decided to wait for a resolution about item 1 before allowing corrective work, there is no violation of (A)(23). Also, because Respondent was willing to correct items 5b (nails showing through overhang) and 7 (damage to pool) as required of a good workman, but was not allowed to do so by Complainant’s decision to wait for the hearing, no violation of the workmanship standards can be found. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-1212 against Respondent Built Wright Homes, 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 26, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Item 4 and item 13 were the same, so only item 4 will be listed herein. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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