ALJDEC decisions subject to certification as final

2011A-1803-ROC · Registrar of Contractors · 2011-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Ronald Gomez

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to build according to specifications against Respondent regarding installation of a new roof. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, as well as marked Exhibits 1 through 8. Complainant presented evidence and testimony. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending revocation of the license. FINDINGS OF FACT 1. Respondent was the holder of license K-5.243606-D, a dual restricted contracting license issued by the Registrar of Contractors (“ROC”). It authorized Respondent to install and repair foam and foam panel roofing. The Qualifying Party for the license was Mark Passerrelli. The license was revoked on May 18, 2011. 2. In July 2010, Complainant hired Respondent to remove his old roof and install a new roof.[1] The scope of the work included removal of the old roof foam, checking for damage of the plywood underneath, replacing damaged plywood if necessary, and putting down one inch of new foam. Complainant paid Respondent an initial payment of approximately half the total price.[2] 3. Respondent started the job on August 6, 2010, and finished it on August 10, 2010. Complainant paid the remaining balance.[3] 4. In October 2010, Complainant experienced a major hailstorm at his property that damaged the roof. He had insurance coverage for that particular event through his homeowner’s association. The roof was inspected for damage and new roof installation was authorized. 5. When the new roofer inspected the roof to began work in March 2011, Complainant was informed that his roof, as installed by Respondent, did not have one inch of foam, that new plywood was placed over old damaged plywood, that only a base coat of foam was put on, not a top coat, and that old foam was left on the roof and new foam put on top of it.[4] Complainant bought five new plywood sheets for $275.00 and had the new roofer remove five sheets of old plywood and replace with the new plywood, as should have been done by Respondent.[5] New foam was put on by the new roofer, as covered by insurance. Therefore, in March 2011, Complainant had a new roof. 6. Complainant immediately filed a complaint with the ROC. 7. Complainant’s evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] 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.[8] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship), and (A)(2) (requires a contractor to build according to plans, specifications, and building codes). This tribunal concludes that Respondent did not install the roof according to the specifications stated in the contract and finds a violation of (A)(2). 3. Finding a violation of (A)(3) for poor workmanship is precluded by A.R.S. § 32-1155(C). That provision states that the ROC may not cite a contractor for failure to meet building codes or workmanship standards if the work has been modified by another contractor. Therefore, although the facts support it, this tribunal cannot legally find a violation of (A)(3). 4. By failing to remove damaged plywood and failing to install one inch of foam as stated in the contract, Respondent did not follow specifications and violated (A)(3). 5. The only damages Complainant has shown is $275.00 for plywood. 6. A review of current ROC records shows that Respondent’s license is revoked. Pursuant to A.R.S. § 32-1154(C), the revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to further discipline the license. 7. The appropriate sanction in this matter is revocation. Complainant may file a claim with the Residential Contractors’ Recovery Fund if he wishes to try to recover his damages. RECOMMENDED ORDER IT IS RECOMMENDED that license K-5.243606-D, held by M and T Roofing LLC be revoked.

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 25, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 2. [3] Exhibits 4 and 5. [4] Exhibit 7. [5] Exhibit 8. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] 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