ALJDEC decisions subject to certification as final

2011A-3752-ROC · Registrar of Contractors · 2012-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 21, 2012 APPEARANCES: Complainant Deibel Enterprises LLC appeared through its owner, Larry Deibel. Respondent Jeffrey George Leland doing business as (“dba”) Leland Roofing appeared through Jeffrey Leland. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 42.178580-D to Jeffrey George Leland dba Leland Roofing (“Respondent”). The Registrar received a Complaint against Respondent from Deibel Enterprises LLC (“Complainant”) regarding the roofing job done by Respondent at 2608 N. West Street, Flagstaff, Arizona. After the Registrar assigned the Complaint to its inspector, William Redman, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Redman concluded that the roof had little or no pitch and had numerous areas where the water was ponding. Inspector Redman noted that the building was “on the older side and should have the entire roof removed [and] a complete new system installed.” Inspector Redman issued a Corrective Work Order in which Respondent was instructed to determine the cause of the numerous roof leaks and repair the same in a good and workmanlike manner. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. Inspector Redman subsequently left state service. No other inspector performed a pre-hearing inspection. A hearing was held on November 21, 2012. Complainant submitted 46 exhibits and presented the testimony of Jeffrey Leland and Adam Deibel. Respondent presented the testimony of Thomas Woodall, an employee of Respondent, and Jeffrey Leland. Hearing Evidence Complainant contracted with Respondent to reseal any cracked or damaged roofing, clean the entire roof with heated pressure washer, apply fibered aluminum over the entire flat deck, and reseal the metal cap on the parapet. Respondent informed Complainant that the roof was old and probably needed to be replaced, but it was possible that the repair and paint job may “get them by” for two more years. After the job was complete, Complainant noticed leaks in the roof. Complainant called Respondent on numerous occasions to report the leaks. Respondent made numerous attempts to repair the leaks. Complainant admitted that he used a snowblower on the roof to remove snow in an effort to reduce the leaking. Complainant also admitted that his employees used shovels, brooms, and squeegees on the roof to remove snow and ice to help reduce the leaking. Complainant admitted that he attempted to repair various leaks on the roof because Respondent was non-responsive to the reports of leaks. Mr. Deibel is not a licensed contractor. Following the issuance of the Corrective Work Order, Respondent walked the roof with Complainant and identified each area of concern. Prior to performing the repair work, Respondent contacted Inspector Redman to clarify the scope of the Corrective Work Order. Inspector Redman instructed Respondent that he was only required to patch the leaking areas and was not required to paint over the patches. Respondent patched the leaking areas of the roof identified in his walkthrough with Complainant in accordance with the Corrective Work Order. Mr. Deibel testified the roof still leaks in areas. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Complainant argued Respondent never performed the job that he agreed to do as evidenced by the numerous leaks that occurred following the project’s completion. 4. Respondent testified that given the age of the roof, the weight of snow and ice on the roof would cause the roof to move and crack more despite his repair and paint job. At the time of the contract, Respondent informed Complainant that the building needed a new roof, but Complainant elected to pursue a repair and paint job to try to extend the life of the roof by two years. 5. No evidence was presented with respect to a pre-hearing inspection. Rather, Complainant testified the Respondent failed to comply with the Corrective Work Order and Respondent testified it performed the work required by the Corrective Work Order. 6. Complainant did not establish that Respondent’s work on the roof violated industry standards or was not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 7. Complainant did not establish that Respondent failed to take appropriate corrective action to comply within a reasonable period of time after receiving a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(23). 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 dismiss Complainant Deibel Enterprises LLC’s Complaint in Case No. 2011-3752 against Respondent Jeffrey George Leland dba Leland Roofing’s License No. K- 42.178580-D. 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, December 11, 2012.

/s/ Tammy L. Eigenheer 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