ALJDEC decisions subject to certification as final

2011A-3371-ROC · Registrar of Contractors · 2012-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2012

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Fidelis Garcia, accompanied by corporate representative Juan Ordonez, Member and Qualifying Party.

WITNESSES: Mark Alyea, ROC Inspector Guillermo Arones Juan Ordonez

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order for roofing work done by Respondent after a hail storm damaged Complainant’s roof. In addition, Complainant alleges that Respondent took property that belonged to him (a roof jack and used air duct) off the jobsite. That allegation was added at the hearing and Respondent waived any objection based on lack of notice. Respondent denies all allegations.[1] This tribunal entered the complaint file received from the Registrar of Contractors into the record. Respondent presented photographs marked and admitted as Exhibits R1 through R13. The parties submitted testimony from the witnesses listed above. 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 C-61.269278-R issued by the Registrar of Contractors (“ROC”). It is a specialty residential contracting license that authorizes Respondent to perform limited remodeling and repair work for residential properties. The Qualifying Party on the license is Juan Ordonez. 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 result. Complainant filed a complaint with the ROC in June 2011. 3. Also in June 2011, ROC Inspector Mark Alyea inspected Respondent’s work and issued a Corrective Work Order (“CWO”) ordering corrective work as follows: Contractor to correct by appropriate means the following. 1.The back patio roofing that is to [sic] long and over hanging on the east side. 2.The HVAC on the roof makes a lot of noise when the unit cycles on and off. The fins on the unit were not combed. The unit is cocked on the roof (out of square) and the stand was not nailed to the roof. 3.In the attic there is an open piece of duct work that is blowing cold air into the attic. Contractor should cap this duct off or disconnect. 4.The fascia all around the house was not painted. 5.The back patio post were [sic] not painted.[2]

Inspector Alyea testified about his findings at the hearing. He primarily testified about what he observed at a pre-hearing inspection on January 4, 2012. The parties agreed that the only items left for hearing were CWO items 2, 3, and 4, as well as two other items not on the list above. One of those items was a broken truss in Complainant’s attic, which Inspector Alyea observed but did not order correction to because he could not determine whether Respondent was responsible for breaking it. The other item was the issue added at hearing concerning the loss of a roof jack and A/C duct work. These issues will be addressed in turn. 4. Inspector Alyea testified that CWO items 3 and 4 had been corrected when he inspected them on January 4. As to CWO item 2, corrections had been made, but the Inspector could not verify the levelness of the unit because he did not have a level. The unit appears to the naked eye to be out of level. The Inspector stated that the unit needs to be checked with a level and, if out of level, needs to be shimmed so that it becomes level. 5. Complainant did not challenge Inspector Alyea’s testimony on those matters. Respondent submitted Exhibit R10, which is a photograph of a level sitting on the A/C unit and shows that the unit is level. Based on Exhibit R10 and the credible testimony of Juan Ordonez, the evidence does not show that the unit is out of level. 6. The evidence shows that Respondent complied with the CWO. 7. Complainant’s main contentions are that Respondent broke a truss in the attic and took away, without authorization, a roof jack and some duct work. 8. Respondent does not dispute that the roof jack and duct work was hauled away. Juan Ordonez testified that it was assumed to be trash and was taken away to be thrown out. He testified that Respondent had no reason to believe that Complainant wanted the material. 9. Complainant testified that Respondent should have asked before taking the material away. 10. There is no evidence to support a finding that taking the material away (i.e., treating it as trash) in the circumstances presented by the evidence constituted poor workmanship. 11. Regarding the broken truss there is no direct evidence that Respondent’s workers went into the attic. All witnesses agreed that the roof jack could have been removed without going into the attic. Inspector Alyea testified that the removal could have been done from outside or from inside the attic. Respondent testified that there was no reason to go into the attic to do the work, and that there was especially no reason to go to the area of the attic where the broken truss was located. On the other hand, Complainant testified that he believes someone from Respondent put a foot through the carport roof drywall close to the area where the truss is broken. 12. No witness was presented who was present when the roof work was being done to testify that no one went into the attic. Neither is there any testimony that any of Respondent’s workers were seen getting into the attic.[3] However, the circumstances and timing of the damage gives a strong impression against Respondent. On the other hand, the file contains a copy of a Better Business Bureau (“BBB”) complaint filed by Complainant against Respondent before he filed the ROC complaint which makes no mention of the broken truss. And Respondent has denied being in the attic since Complainant first made the charge. Finally, the damaged truss is not near the area where, if Respondent had gone into the attic to remove the roof jack, Respondent would have been working. 13. Having considered all the circumstantial evidence regarding the broken truss in the attic, the evidence does not show by a preponderance that Respondent broke the truss in Complainant’s attic. 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 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.[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 does not show violation of those provisions. 3. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-3371 against Respondent Expert Contracting LLC 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, January 25, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Citation and Complaint issued in this case included an allegation of violation of A.R.S. § 32-1154(A)(20): “Subsequent discovery of facts which if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.” During the hearing, Respondent moved to dismiss this allegation. Because the Citation and Complaint does not identify the facts that were subsequently discovered, and because the Citation and Complaint does not allege a violation for contracting without a license (as alleged in the complaint), and because there was no witness from the ROC present to testify as to what facts would have been grounds to deny license issuance or renewal, the motion was granted. [2] Formatting retained from the original [3] Based on other evidence in the file, it appears that Complainant owns the home but does not live there, his son does.. [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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