ALJDEC decisions subject to certification as final

2011A-240-ROC · Registrar of Contractors · 2012-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2012

APPEARANCES: Complainant appeared on her own behalf, accompanied by her son; Respondent was represented by an authorized employee, Manager Kevin D. Presmyk.

WITNESSES: Ted Gerold, ROC Inspector Lynn Shafer, Complainant Chris Shafer, Complainant’s son who lives in the house Kevin D. Presmyk, Respondent’s Manager

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to roofing work done by Respondent after a hail storm damaged Complainant’s roof. Respondent’s position is that most of the Corrective Work Order items were corrected, some are not Respondent’s responsibility, and that Complainant denied access to do other corrections. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits A (photos of roof from outside), B (photos of broken trusses), and C (engineering report for repair of trusses) submitted by Complainant, 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 that Respondent has not complied with the Corrective Work Order and must hire another licensed contractor to do the corrective work or have its license revoked. FINDINGS OF FACT 1. Respondent is the holder of license B.135450-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. Kevin Leigh Presmyk is the Qualifying Party.[1] 2. In November 2010, Complainant hired Respondent to repair roof damage after a hail storm. Respondent performed the work and Complainant was not happy with the work. After giving Respondent time to make corrections, Complainant filed a complaint with the ROC. 3. In July 2011, ROC Inspector Ted Gerold inspected Respondent’s work and issued a Corrective Work Order (“CWO”) ordering corrective work on the following seven items, as follows: 1) Some of the replacement tongue-n-groove patio roof planks were poorly done, including excessive gaps and cut too short. Contractor is to correct. 2) Flashing at side of chimney needs to be secured. Contractor to correct. 3) Plywood not nailed properly nor secured in shed. 4) Some nails protrude too far through the plywood overhangs at both sides of the house. No nails should protrude more than ¼ of an inch past plywood. Contractor to cut all nails necessary back to that length. 5) I went into attic and verified that there are some areas of plywood not nailed correctly especially near the garage attic access and the roof ridge area. Contractor to inspect attic and correctly nail the plywood as necessary. 6) Also in the attic there are broken trusses that are not properly fixed. This contractor is to have the broken trusses properly engineered for the proper repairs to be completed. 7) Voids and possible leaks at the A/C elbow and roof vents on the roof. Contractor to correct.[2]

Inspector Gerold testified about his findings at the hearing. He primarily testified about what he observed at a pre-hearing inspection on January 3, 2012. 4. With respect to CWO Item 1 on January 3rd, he found remaining issues with three tongue-and-groove patio roof planks. A plank near the fireplace chimney needs to be replaced because it has a hole in it. A second plank has nails protruding through it and needs to be replaced so that it looks the way a finished product should look. Finally, a plank near the back of the patio roof has splits in the wood that Respondent tried to fill with caulk but did a very poor job. The plank must be replaced. In addition, the rolled roofing on the flat patio roof, put there by Respondent after corrective work was done, is too short and does not come to the edge in some areas. This must be fixed as well. 5. Inspector Gerold found that the flashing at the side of the chimney, the subject of CWO Item 2, had not been secured and leaks water. Thus, it has not been fixed as ordered in the CWO. 6. Inspector Gerold was told at the January 3rd inspection that CWO Item 3 had been completed and he did not inspect it. 7. Regarding CWO Item 4, nail protrusions in the plywood overhangs, Inspector Gerold found that Respondent had ground down the nail protrusions and damaged the plywood in the process. This needs to be repaired (sanded to a smooth finish) and painted. 8. Inspector Gerold testified at the hearing that he has changed his opinion about CWO Item 5 because he has concluded that Respondent could not have done work in the area. There was no dispute about this change in opinion. Therefore, the evidence shows that no action is required on CWO Item 5. 9. Regarding CWO Item 6, Inspector Gerold testified that the trusses were cracked rather than broken. He noted that Respondent had attempted to bolster one of the cracked trusses, but in a way that was obviously ineffective.[3] He noted that whenever a truss is altered, as it was with the attempted bolstering by Respondent, proper engineering must be obtained and followed. That was not done here. 10. Finally, Inspector Gerold testified that CWO Item 7 had been corrected. 11. Complainant submitted Exhibit C at the hearing, and it was admitted into evidence. Exhibit C is an engineering report from LAM Structural Engineering, LLC that Complainant obtained in order to address the cracked roof trusses. The report describes the proper fix for the trusses. 12. Kevin D. Presmyk testified that Respondent did not crack the trusses. He based his conclusion on the photographs in Exhibit B, stating that they show the cracks to be old because dust is visible inside the truss cracks. This tribunal has viewed the photographs and disagrees. The photos show dust in the cracks in the wood, but also show dust on the boards put in place by Respondent as an attempt to bolster for one of the cracked trusses. So, the presence of dust does relate to the age of the cracks as Mr. Presmyk has assumed. 13. Complainant testified that the cracked trusses were not noticed until after Respondent did its work on the roof. The evidence of the timing of the discovery of the cracked trusses and Respondent’s work on the roof is enough to find by a preponderance that Respondent is responsible for the cracked trusses, as Inspector Gerold concluded. 13. The greater weight of the evidence supports Inspector Gerold’s testimony and conclusions, as well as the engineering report in Exhibit C. Thus, the evidence shows poor workmanship and failure to comply with the CWO. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] Complainant has 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.[7] 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 shows violation of those provisions. The evidence also shows that Respondent’s attempts to correct the problems have primarily failed and in some cases caused further damage. This tribunal concludes that Respondent is unable or unwilling to perform the corrections in this case and that the corrections should be performed by another contractor at Respondent’s expense. 3. A review of Respondent’s license status shows that the license was issued in 1998 and has been recently disciplined. Respondent is currently on disciplinary probation from November 17, 2011, to May 15, 2012. 4. The appropriate sanction in this matter is to require Respondent to hire another appropriately licensed contractor or contractors to make the required corrections in the manner specified above. If Respondent does not do so in a timely manner, the license should be revoked. A civil penalty for failure to comply with the CWO is warranted at the maximum amount of $500.00. RECOMMENDED ORDER IT IS RECOMMENDED that license B.135450-R, held by Presmyk and Sons Construction, Inc., be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that Respondent has caused another properly licensed contractor to make the corrections discussed in the findings and conclusions above, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 2011-240 shall be closed. IT IS FURTHER RECOMMENDED that along with the sanction provided above, Presmyk and Sons Construction, Inc. pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, January 24, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Kevin D. Presmyk, who represented Respondent at the hearing, is the son of the Qualifying Party. [2] An addendum CWO was also issued, but that CWO was not at issue at the hearing. [3] Mr. Presmyk admitted this. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] There are also other citations that were not addressed by the evidence presented at hearing.

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