ALJDEC decisions subject to certification as final

2011A-4033-ROC · Registrar of Contractors · 2012-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, David Ramirez. 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. The Respondent is the holder of License No. K-42.251105 D issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to re-roof the Complainant’s residence. 3. Credible testimony and evidence established that as part of their construction agreement, the Complainant agreed to furnish, at the Complainant’s cost, new plywood sheaving for any of the old plywood sheaving that the Respondent found to be unacceptable. 4. Credible testimony and evidence established that the Respondent agreed to remove the unacceptable plywood sheathing and install the new plywood sheaving without charge for the Respondent’s labor. 5. Credible testimony and evidence established that the Respondent had anticipated that four or five pieces of plywood would require removal and replacement. 6. Credible testimony and evidence established that after thirty one (31) pieces of plywood were removed and replaced, the Respondent found all of the remaining existing plywood sheathing on the Complainant’s roof to be acceptable. 7. When the Respondent finished its construction work and left the construction site, a friend of the Complainant inspected the new roof prior to the on-site inspection and observed numerous soft spots and areas of the roof with insufficient reflective roof coating. 8. The Complainant was dissatisfied with the Respondent’s workmanship on her roof and demanded that the Respondent return to her residence and properly correct her roof. 9. When the Respondent failed to comply with the Complainant’s demands, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on July 21, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective action on the Complainant’s roof. 11. The Respondent declined to comply with the Corrective Work Order issued in this matter because the Respondent alleged that it was not given sufficient time to perform corrective work on the Complainant’s roof prior to the onsite inspection and because the Respondent disagreed with the terms of the Corrective Work Order. 12. Credible testimony and evidence established that when the Respondent stated that it had not been provided sufficient time to correct the Complainant’s roof prior to the onsite inspection, the assigned Agency Inspector offered to delay issuing the Corrective Work Order if the Respondent would agree to perform necessary corrective work on the Complainant’s roof. 13. Credible testimony and evidence established that the Respondent then declined to perform any corrective work on the Complainant’s roof, and the Registrar of Contractors then issued a Corrective Work Order directing the Respondent to perform corrective action on the Complainant’s roof. 14. Credible testimony and evidence established that there are numerous unacceptable soft and saggy spots in the Complainant’s new roof. 15. Credible testimony and evidence established that the reflective coating on the Complainant’s new roof is unacceptably thin and that there are spots on the new roof with little, if any, reflective coating. 16. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s new roof fails to comply with applicable workmanship and industry standards. 17. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the construction of her new roof are understandable, construction work, such as that at issue herein, is not a perfect science, and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work on her roof.

18. Administrative notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on March 15, 2012, such records reflect that License No. K-42.251105.D of Respondent EL PUEBLO ROOFING CO LLC is current and in good standing. 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 poof on all issues in this mater is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154(A)(23) (failure to take appropriate corrective action) and A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License No. K-42.251105-D be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by the Respondent 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, March 15, 2012.

/s/ M. Douglas 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