ALJDEC decisions subject to certification as final

2011A-1622-ROC · Registrar of Contractors · 2011-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Paul Brian Higgins. 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 KB-2 (No. 237389) License issued by the Registrar of Contractors. 2. The Rules and Regulations of the Arizona Registrar of Contactors provides that the scope of work allowed under a Class KB-2 license is as follows: This classification allows the scope of work permitted by the B-2 General Small Commercial and the B- General Residential Contractor licenses.

3. The Rules and Regulations of the Arizona Registrar of Contractors provides that the scope of work permitted under a Class B- General Residential license is as follows: Construction of all or any part of a residential structure or appurtenance, except for electrical, plumbing, air conditioning systems, boilers, swimming pools, spas, and roofing (except shingles and shakes) which must be subcontracted to an appropriately licensed contractor. Also included are the scopes of work in B-3 and most of the C scopes except as restricted above.

4. This is a residential matter where pursuant to the parties’ construction agreement the Respondent applied a new shingle roof over the main portion of the Complainant’s residence and a new torch-down roof over the Complainant’s rear patio area. 5. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to his satisfaction despite his repeated requests that it do so. 6. When the new torched-down roof leaked and the Respondent failed to properly correct the problems with the new torch-down roof, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on April 12, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 8. The written Corrective Work Order provides, in pertinent part, as follows: This contractor is to correct the following by appropriate means: Properly seal the roof around the edges and seams per specifications of the contract and manufacturer. There seems to be some excessively weak plywood areas that need to be addressed. Insufficient evidence was provided at the jobsite to prove that the base sheet was not properly fasten [sic] and that a primer was not used prior to sealing the outer edges of the roof. The respondent [sic] will provide warranties to the complainant after full payment is made. If this is a provision of the contract, then this agency has no jurisdiction over this matter. Item # 2 of the complaint is no longer an issue per the complainant at the jobsite inspection. 9. Credible testimony and evidence established that the Respondent did attempt to gain access to the Complainant’s residence in an effort to attempt to comply with the terms of the Corrective Work Order and that the Complainant refused access to the Respondent on the basis that the Respondent was not licensed to perform roofing work on the Complainant’s torch-down roof. 10. Credible testimony and evidence established that the installation of the torch-down roof on the roof over the Complainant’s rear patio area was beyond the scope of the Respondent’s License. 11. Credible testimony and evidence established that the Respondent’s workmanship in the installation of the new torch-down roof failed to comply with applicable workmanship and industry standards. 12. Credible testimony and evidence established that the new torch-down roof was not installed in accordance with applicable building code requirements. 13. The Complainant’s requirement that the repair to the torch-down roof be performed by a properly licensed roofing contractor rather than by the Respondent was shown to be reasonable and justified under the circumstances. 14. Credible testimony and evidence established that when the Respondent failed to cause a properly licensed roofing contractor to correct the Complainant’s torch-down roof, the Complainant retained a properly licensed roofing contractor to properly correct the torch-down roof at a cost of $1,280.00. 15. Credible testimony and evidence established that the Complainant was also required to purchase $100.00 worth of new plywood for the replacement of water damaged plywood on the rear patio roof before the torch-down roof could be properly corrected. 16. Credible testimony and evidence established that the Complainant’s actions, in causing the water damaged plywood to be replaced and the torch-down roof to be corrected by a properly licensed roofing contractor in order to prevent further water damage to the Complainant’s residence, were reasonable and justified under the circumstances. 17. Credible testimony and evidence established that the Complainant’s costs of repairing the torch-down roof in the total sum of $1,380.00 were reasonable and justified under the circumstances. 18. Credible testimony and evidence established that no further corrective action is required on the Complainant’s torch-down roof. 19. 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 established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) 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. A.R.S. § 32-1156.01 provides, in pertinent part, as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. 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 proof that the Respondent has paid the Complainant the sum of $1,380.00 as restitution for the Complainant’s costs of replacing water damaged plywood under the torch-down roof and for causing the Complainant’s torch-down roof to be properly corrected by a properly licensed roofing contractor. . It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, 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 $250.00 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, this day, September 14, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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