ALJDEC decisions subject to certification as final

2011A-3844-ROC · Registrar of Contractors · 2012-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7, 2012, at 1:00 p.m. APPEARANCES: Rick Gonzales (hereinafter “Complainant”) appeared on his own behalf. River Roofing Inc. (hereinafter “River Roofing”) appeared through its qualifying party and authorized representative, Jason William McGregor. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. River Roofing is the holder of License No. C-42.108526-R issued by the Registrar of Contractors. 2. This is a residential matter where on or about March 16, 2009, River Roofing performed roof repair work on a residence located at 514 Hagen Way, Lake Havasu City, Arizona, just before Complainant purchased the residence. 3. There was no dispute that Complainant’s roof leaked after River Roofing’s repair. On or about April 26, 2010, Complainant filed a formal Complaint (ROC Case No. 2010-[number redacted]) against River Roofing with the Registrar of Contractors. 4. After River Roofing performed additional roof repairs over the foyer area and garage area of Complainant’s residence, the first Complaint (ROC Case No. 2010-[number redacted]) was closed. 5. On July 3, 2011, Complainant experienced additional roof leaks in his residence and filed another Complaint against River Roofing with the Registrar of Contractors. 6. Pursuant to the filing of the second formal Complaint, an assigned Agency Inspector, Cliff Corlett (hereinafter “Inspector Corlett”), conducted an onsite inspection on July 21, 2011. Inspector Corlett issued a written Corrective Work Order on July 26, 2011, directing River Roofing to perform designated corrective work on Complainant’s residence. 7. The Corrective Work Order provided, in pertinent part, as follows: Respondent accepted responsibility at the on-site[sic] inspection that his workmen failed to reinstall the drain screen basket over the garage drain. Respondent agreed to clear the drain, install screen, and check for leaks and tape repair the drywall ceiling in the garage.

Complainant should be advised that flat roofs need regular maintenance and inspection. Drains need to be cleaned of any accumulated obstructions.

8. Inspector Corlett testified that he conducted a pre-hearing inspection on the morning of September 7, 2012. Inspector Corlett testified that River Roofing had failed to repair the drywall and ceiling damage in Complainant’s garage. Inspector Corlett stated that another licensed contractor had corrected the drywall damage in Complainant’s garage at Complainant’s expense.[1] 9. Inspector Corlett testified that the leak in Complainant’s roof was apparently corrected by a handyman. Inspector Corlett testified that the $1,800.00 charged by Eddie Espino dba Handyman/Light Construction for roofing work performed on Complainant’s residence was beyond the handyman exemption of $999.99 allowed by statute.[2] 10. Susan Miller (hereinafter “Ms. Miller”) testified that she is a realtor. Ms. Miller stated that corrective work on the roof was required as a condition of Complainant’s purchase of the residence. Ms. Miller testified that she first contacted River Roofing in the first quarter of 2009, and contracted with River Roofing for the necessary roof repairs to Complainant’s residence. Ms. Miller stated that River Roofing never completed the agreed-upon roofing repairs to Complainant’s roof.[3] 11. Ms. Miller testified River Roofing was retained to correct the problems with Complainant’s roof and that she returned to Complainant’s residence on several occasions and personally observed significant water damage in the interior of the garage caused by the unrepaired roof leaks. Ms. Miller stated that the last time she was at Complainant’s residence she was “literally shocked” to see drywall hanging down from the ceiling and water stains on the drywall and ceiling in Complainant’s garage. Ms. Miller testified that the water damage to the interior of Complainant’s garage was a “mess.”[4] 12. Ms. Miller testified that she recommended that Complainant contact the Registrar of Contractors because she was concerned about the possibility of ongoing interior water damage and mold damage to Complainant’s residence.[5] 13. Complainant’s wife, Ramona A. Gonzales (hereinafter “Ms. Gonzales”), testified that the roof leaked every time that it rained and that every time the roof leaked, Complainant would contact River Roofing. Ms. Gonzales stated that River Roofing never responded until Complainant contacted the Registrar of Contractors.[6] 14. Ms. Gonzales testified that when River Roofing’s drywall subcontractor “showed up” at Complainant’s residence, no repair work was performed. Ms. Gonzales stated that the drywall subcontractor looked at the extensive interior water damage in Complainant’s garage. The drywall subcontractor then stated that the subcontractor needed a ladder and left the residence. The drywall subcontractor failed to return to Complainant’s residence. No corrective work was ever performed on Complainant’s residence by River Roofing’s drywall subcontractor.[7] 15. Ms. Gonzales testified that every time it rained, Complainant’s roof leaked causing additional interior damage in Complainant’s residence. Ms. Gonzales stated that Complainant retained other contractors to repair the roof and to correct the interior water damage because River Roofing had failed to correct the problems with Complainant’s roof and the interior water damage, despite repeated opportunities to do so.[8] 16. Complainant testified that he has had a very difficult time trying to communicate with River Roofing. Complainant stated that River Roofing’s qualifying party, Jason William McGregor, acknowledged that River Roofing could not find the leak in Complainant’s roof. Complainant stated that the interior water damage to the ceiling and drywall in Complainant’s residence was continuing and becoming more severe. Complainant testified that he had no choice but to contract with other contractors to correct the roof leaks and the interior drywall and ceiling damage.[9] 17. Complainant stated that he paid Authentic Painting and Coatings, Inc the sum of $1,480.54 for drywall and ceiling repairs in his garage.[10] 18. Complainant’s actions in retaining a licensed contractor to repair the interior damage to the interior of his residence were shown to be reasonable and justified under the circumstances. 19. Complainant testified that he paid Eddie Espino, a handyman, $750.00 for labor and $1,050.00 for materials for a total of $1,800.00 for needed repairs to Complainant’s roof. Complainant stated that the handyman applied 9 five-gallon buckets of roofing material to Complainant’s roof.[11] 20. The actions of the unlicensed handyman in contracting and performing $1,800.00 worth of roofing work on Complainant’s residence were shown to be beyond the handyman exemption provided in A.R.S. § 32-1121(14).[12] 21. Jason William McGregor (hereinafter “Mr. McGregor”) testified that River Roofing contracted with a real estate company to correct roof leaks over the garage and entryway of Complainant’s residence and to remove and replace broken roof tiles on the residence. Mr. McGregor stated that River Roofing performed all of the agreed-upon roofing work.[13] 22. Mr. McGregor testified that he met with Complainant and the assigned agency inspector after the complaint was filed. Mr. McGregor stated that River Roofing performed corrective work on Complainant’s roof three separate times. Mr. McGregor testified that on the third repair attempt, River Roofing “took care” of all the roof leaks and contacted a subcontractor to perform the drywall repairs to Complainant’s residence.[14] 23. Mr. McGregor testified that River Roofing’s drywall subcontractor asserted that Complainant’s tenants refused to give that subcontractor access to Complainant’s residence. Mr. McGregor stated that he was more than willing to pay for the drywall work that was performed in Complainant’s garage.[15] 24. Mr. McGregor testified that the life expectancy of a flat roof, such as Complainant’s, is only ten years. Mr. McGregor stated that Respondent’s first repair attempt on Complainant’s roof was sometime in 2009. Mr. McGregor acknowledged that River Roofing had been trying to correct the leaks in Complainant’s roof for over two years. Mr. McGregor asserted that roof leaks are sometimes very difficult to locate.[16] 25. Mr. McGregor testified that he contacted his selected drywall subcontractor five times in an effort to get the drywall subcontractor to fully correct the drywall and ceiling damage in Complainant’s garage.[17]

26. Administrative notice is taken of River Roofing’s prior license record as reflected on the Registrar of Contractors’ public website on September 10, 2012. Such prior license record reflects that License No. C- 42.108526-R of River Roofing is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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. River Roofing failed to properly correct Complainant’s roof leaks despite having nearly two years to do so. Complainant suffered extensive interior drywall and ceiling damage as a result of the roof leaks in his residence. This Tribunal concludes that River Roofing violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[18] 4. River Roofing failed to fully comply with the terms of the Corrective Work Order despite having repeated opportunities to do so. This Tribunal concludes that River Roofing violated the charged provision of A.R.S. § 32-1154(A)(23).[19] 5. Pursuant to the provisions of A.R.S. § 32-1156.01, this Tribunal may recommend that River Roofing pay Complainant the sum of $1,480.54, as restitution for Complainant’s expenses in having a licensed contractor replace water damaged drywall in Complainant’s residence.[20] 6. This Tribunal cannot recommend that River Roofing pay restitution to Complainant for roofing repair work that was performed by an unlicensed handyman in possible violation of the licensing provisions of the State’s contracting laws.[21]

RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that License No. C-42.108526-R of River Roofing shall be suspended until the Registrar of Contractors receives and accepts written proof that River Roofing has paid Complainant the sum of $1,480.54 in certified funds as restitution for Complainant’s costs of correcting water damaged drywall and ceilings in Complainant’s residence. It is further recommended that if River Roofing fully accomplishes the above described restitutionary action on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that River Roofing pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by River Roofing to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of River Roofing’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with River Roofing, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. It is further recommended that the Registrar of Contractors conduct an investigation of the possible unlicensed contracting activities by handyman Eddie Espino in this matter. In the event of certification of this 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 the certification.

Done this day, September 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 9/7/12 Hearing Record (hereinafter “H.R.”) at 14:20-16:27. [2] H.R. at 24:26-26:09. [3] H.R. at 30:30-31:10. [4] H.R. at 33:30-34:07. [5] H.R. at 36:20-37:17. [6] H.R. at 38:20-39:06. [7] H.R. at 40:15-41:23. [8] H.R. at 41:44-42:24. [9] H.R. at 45:50-48:41. [10] Administrative notice is taken of Authentic Painting and Coating, Inc’s prior license records as reflected on the Registrar of Contractors’ public website on September 10, 2012. Such prior license record reflects that License No. K-10.275596 of Authentic Painting and Coating, Inc is current. [11] H.R. at 48:42-49:09. [12] A.R.S. § 32-1121(A) provides, in pertinent part, as follows: 14. Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply: This exemption does not apply: (a) In any case in which the performance of the work requires a local building permit. (b) In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than one thousand dollars, excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, for the purpose of evasion of this chapter or otherwise. (c) To a person who utilizes any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement.

[13] H.R. at 52:18-53:20. [14] H.R. at 53:21-54:04. [15] H.R. at 54:08-54:50. [16] H.R. at 55:00-58:48. [17] H.R. at 58:55-59:59. [18] A.A.C. R4-9-108 Workmanship Standards provides as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[19] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. [20] A.R.S. § 32-1156.01 Restitution, provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

[21] A.R.S. § 32-1151 Engaging in contracting without license prohibited provides as follows:

It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person, firm, partnership, corporation, association or other organization is exempt as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract.

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