ALJDEC decisions subject to certification as final

2011A-2305-ROC · Registrar of Contractors · 2011-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2011, at 1:00 p.m. APPEARANCES: Complainant Rose A. Glashagel appeared on her own behalf; Respondent A M A Construction Co. appeared through Wayne Anthony Glashagel, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In November 2000, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC160286, Class B for residential general contracting to A M A Construction Co. (“Respondent”). Wayne Anthony Glashagel (“Mr. Glashagel”) is Respondent’s qualifying party and officer. On or about April 19, 2011, the Registrar received a complaint from Rose A. Glashagel (“Complainant”) against Respondent regarding its repair in June 2009 of damage from a microburst to the carport, patio, and roof on her mobile home at 1065 North San Marcus Road, Apache Junction, Arizona (“the project”). Complainant alleged eleven specific items of complaint: (1) The trellis across the carport was sagging; (2) The trellis across the patio was missing lateral support; (3) The 20-foot gutter on the Arizona room needed caulking to prevent water from running behind the windows; (4) The gutters on the Arizona room and carport needed to match; (5) The flashing did not lie flat on the roofs of the carport and patio; (6) The bars between the trellis had holes in them; (7) The trellis next to the mobile home on the patio was not braced and was hanging; (8) Respondent did not obtain a permit for the project, and the municipality had not performed a final inspection; (9) Respondent owed Complainant $355.00 for “all the cracks and sealing of the roof”; (10) Seventeen trellis panels under the carport and patio were damaged and needed to be replaced with metal panels that matched the mobile home; and (11) The awning on the southeast corner of the carport needed to be repaired. The Registrar assigned the complaint to its inspector, Ted Gerold, for investigation. Inspector Gerold performed an initial jobsite inspection on May 12, 2011. At the initial jobsite inspection, Mr. Glashagel acknowledged that certain corrective actions were needed, and Complainant agreed to allow Respondent access to perform the corrective actions. On May 16, 2011, Inspector Gerold received a 2-page facsimile from Mr. Glashagel, with a list of typewritten and handwritten items that the parties agreed Respondent would correct, signed by Mr. Glashagel, on behalf of Respondent, and Complainant (“the settlement”). The settlement provided that Respondent would perform the following corrective action, with the handwritten addendums shown in italics: Remove and replace trellis across carport with siding. Add Trellis @ corner

(Homeowner must approve siding. Material that was removed in July 2009 is no longer available)

Add cross support bars for trellis on north side of mobile home. (2 bars per bay)

Add double post at carport. (2)

Seal top of rain gutter.

Seal gap at end of rain gutter. Replaced Rain gutter

Screw flashing down on roof/seal gap where sunlight is coming in. (white or clear)

Change out bars that have holes.

Rebrace trellis on north side of mobile home. Replace N trellis. (even though specs say to reuse old)

Seal hole at southeast corner above gutter. /N.E. corner

Fill hole by gutter, Fill line gap @ gutter (silicone)

Add Post on South side walk

Take down roll Blinds and reinstall

Complainant subsequently requested and on June 3, 2011, Inspector Gerold performed a second jobsite inspection. On June 6, 2011, Inspector Gerold sent a letter to the parties, informing them in relevant part as follows: Per the 2nd jobsite inspection, it is in this inspector’s opinion, that all items per the signed agreement were completed within industry standards. At this time this agency has no further issues with this contractor.

Inspector Gerold also informed Complainant that she could request in writing further review of her complaint. On or about June 21, 2011, the Registrar received Complainant’s written request for a citation against Respondent. On July 28, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2) and (3), namely A.A.C. R4-9-108. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that although Respondent had tried to resolve Complainant’s complaint, she would not be satisfied. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on October 12, 2011. Inspector Gerold testified. Complainant submitted 41 exhibits and testified on her own behalf. Respondent submitted 19 exhibits and presented the testimony of five witnesses: (1) Mr. Glashagel; (2) Chad Otteson, Respondent’s employee who installed the awnings and gutters on Complainant’s mobile home; (3) Jennifer Collum, Mr. Glashagel’s girlfriend, who witnessed the settlement; (4) Tim Copley, Respondent’s employee and Mr. Glashagel’s grandfather-in- law; and (5) Wayne Lewis Glashagel, Mr. Glashagel’s father (“Mr. Glashagel, Sr.”). Hearing Evidence Complainant was 88 years old at the time of the hearing. Mr. Glashagel is Complainant’s grandson. In June 2009, the roof of Complainant’s mobile home, as well as the patio, carport, and Arizona room that were attached to Complainant’s mobile home were severely damaged in a microburst. The day after the microburst, Complainant’s son, Mr. Glashagel, Sr., purchased tarpaulins for emergency repairs. Mr. Glashagel, Sr. suggested that his son, Mr. Glashagel, and Respondent help Complainant with repairs. Mr. Glashagel, on Respondent’s behalf, submitted a proposal to Complainant’s homeowner’s insurer, American Summit Insurance Company. After Complainant and American Summit Insurance Company approved the proposal, Respondent performed repairs. American Summit Insurance Company, on Complainant’s behalf, eventually paid Respondent a total of $11,928.37 for the project. Inspector Gerold testified that after Complainant called Respondent’s failure to obtain a permit to his attention, he confirmed that Respondent had obtained a permit from the City of Apache Junction Development Services Department and that the project passed all City inspections. Respondent submitted copies of the permits and a letter from Dennis Dixon, a Building Official with the City of Apache Junction Development Services Department, that stated that an inspector had inspected the project, found nothing wrong, and closed the permit. Inspector Gerold testified that he performed a prehearing jobsite inspection on October 11, 2011. Inspector Gerold testified that he only noted two deficiencies in the corrective work that Respondent agreed to perform through the settlement: (1) Complainant showed him a hole where she told him she had stuck her finger in the Styrofoam block that Respondent had installed under the roof; and (2) On the carport side of the mobile home, there was a gap in the siding at the ridgeline in the northeast corner. Inspector Gerold testified that Respondent’s corrective work was adequate in all other respects. Mr. Glashagel testified that Respondent used Styrofoam “bug plugs” to keep sunlight and bugs from coming through the openings on the corrugated roofing on the carport and patio. Mr. Glashagel testified that the project specifications, applicable code, and workmanship standards did not require “bug plugs,” and that the openings on most homes did not have the protection of “bug plugs.” Mr. Glashagel testified that the “bug plug” did not have a hole in it when Respondent installed it, and that Complainant caused the hole. Inspector Gerold testified that Respondent added support posts pursuant to the settlement agreement, but that the posts were not in the same locations as the posts that had been damaged in the microburst. Inspector Gerold testified that he had never seen any specifications for the project, and that the current locations of the support posts were suited for the posts’ intended purpose. Complainant testified that Respondent’s placement of the posts shortened the length of the carport by more than three feet. Inspector Gerold testified that Complainant sent “a lot of new information” to the Registrar after she requested a citation against Respondent. The information would have been forwarded to the Registrar’s Legal Department. Because the complaint had not been amended to include additional workmanship complaints, Inspector Gerold testified that he limited his prehearing inspection to the items on the initial complaint and in the settlement, and that Complainant would need to file a new complaint to have the Registrar address the new items. Complainant testified that she only signed the settlement under protest after Mr. Glashagel threatened to call other family members. Ms. Collum testified that she witnessed the settlement negotiations, and denied that Mr. Glashagel made any threats to force Complainant to sign the settlement. Ms. Collum testified that Complainant added all the handwritten terms as conditions for her agreement to the settlement. Complainant testified that she did not approve the siding that Respondent used, and that the siding that had been on the carport before the microburst was currently available, but did not testify where the siding could be obtained. Mr. Glashagel testified that the siding that had been on the carport before the microburst was not currently available. Mr. Glashagel at hearing showed a piece of siding that Complainant had signed to indicate her approval, and testified that the siding was the most comparable to the former siding that was currently available. Complainant testified that Respondent installed the gutters backward, used screws to fasten the flashing to the awning in the carport, causing it to leak, and sealed the carport and patio with Styrofoam, even though Respondent was supposed to use polyurethane.[1] Mr. Otteson testified that the gutters were correctly installed. In his years of working in construction, the gutters were installed to slope down ¼” per foot, which allowed drainage. Mr. Otteson testified that Respondent’s construction and repairs were professional and workmanlike. Complainant testified that in her opinion, the repairs were only about 25% complete. Complainant testified that she did not want the Registrar to suspend or revoke Respondent’s license, but requested that the Registrar order Respondent as a condition of keeping its license current and in good standing, to pay her the full $11,928.37 that it had been paid to allow her to complete the project to her satisfaction. Mr. Glashagel testified that Respondent did not make any money on the project at Complainant’s mobile home, and that he spent more than $3,500.00 out-of-pocket trying to make his grandmother happy, without success. According to the Registrar’s electronic record, Respondent’s license is current and in good standing. This appears to be the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Respondent established that it is not responsible for the hole in the Styrofoam “bug plug” because Complainant deliberately caused the hole after Respondent installed the “bug plug.” Complainant established that Respondent failed to repair adequately the gap in the siding at the ridgeline in the northeast corner on the carport side of Complainant’s mobile home, furnishing cause for the Registrar to discipline Respondent’s license under A.R.S. § 32-1154(A)(2)[6] and (3), specifically A.A.C. R4-9-108.[7] Complainant did not establish that Respondent’s construction of the project or repairs pursuant to the settlement were deficient in any other respect. Respondent’s only workmanship deficiency is minor and can be easily repaired. Complainant did not establish that she is entitled to restitution in any amount under A.R.S. § 32-1156.01. / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent A M A Construction Co.’s License No. ROC160286 until it repairs the gap in the siding at the ridgeline in the northeast corner on the carport side of Complainant Rose A. Glashagel’s mobile home. It is further recommended that the Registrar not suspend Respondent’s license and, instead, close Complainant’s complaint against Respondent in Case No. 2011-2305 if on or before the effective date of the Registrar’s order, Respondent furnishes written proof that is satisfactory to the Registrar of either one of the following: 1) Respondent has repaired in a professional and workmanlike manner the gap in the siding at the ridgeline in the northeast corner on the carport side of Complainant’s mobile home; or 2) Complainant has failed to provide reasonable access for Respondent to repair in a professional and workmanlike manner the gap in the siding at the ridgeline in the northeast corner on the carport side of Complainant’s mobile home. 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, November 1, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The settlement, quoted supra, did not specify the means by which Respondent would seal the gaps where the sunlight was coming in. [2] See 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [7] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

-----------------------

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