ALJDEC decisions subject to certification as final

2011A-4216-ROC · Registrar of Contractors · 2011-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2011 APPEARANCES: Complainant Bea Boynton appeared on her own behalf. James Pak, Esq. represented Respondent Gryphon Construction, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Gryphon Construction, Inc. (“Gryphon”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Gryphon is the holder of a Class K-42 license (No. 237067) issued by the Registrar of Contractors (“ROC”). Russel Hyman is an officer of Gryphon and its qualifying party. 2. In January 2011, Complainant Bea Boynton contracted with Gryphon for Gryphon to replace the roof at her residence located at 8532 East Vista Drive in Scottsdale, Arizona, as well as perform other work related to hail damage. See Exhibit A. Ms. Boynton’s homeowner’s insurance company agreed to pay for Gryphon’s scope of work. 3. Gryphon performed its scope of work at Ms. Boynton’s home. 4. On May 2, 2011, Ms. Boynton filed a complaint against Gryphon with the ROC alleging six specific items of complaint. The items of complaint relating to workmanship concerned the roof . The complaint is incorporated herein by reference. 5. ROC Inspector Jeff Fleetham investigated Ms. Boynton’s complaint. 6. On May 19, 2011, Inspector Fleetham conducted a jobsite inspection. Ms. Boynton, her son, Thomas Boynton (“Thomas”), her friend, Tammy Vaughn, and Mr. Hyman were present for the inspection. 7. On May 19, 2011, following the jobsite inspection, Inspector Fleetham issued a Corrective Work Order (“CWO”) under which the ROC gave Gryphon 30 days to take corrective action as follows (emphasis in the original): All corrective work shall be completed in compliance with local building codes, zoning ordinances and manufactures [sic] installation guidelines.

1. My newly installed roof shingles are lifting and apparent bubbling in at least eight areas can be seen on the roof. • Per jobsite agreement, the Respondent will correct by appropriate means. • Respondent shall correct by appropriate means.

2. When you walk on the roof it feels like a trampoline[.] I was worried that the rep Scott who said he works for Gryphon Roofing and stated he has been in the business of roofing for 11 years would fall through the roof and end up in my living room. He also stated we only covered this for hail damage not to replace the entire roof and they would not fix anything else. • Insurance claim does not include Remove and Replace for sheathing. • Though roof has “spring” in several areas, no deficiency demonstrated or observed at time of inspection. • No action required by the Respondent[.]

3. The work that should be completed is not in a timely manner since the agreement started in Jan 2011 and as of this filing has still not been completed. • Per jobsite agreement, the Respondent will complete the project per original contract agreement. • Respondent shall correct by appropriate means.

4. I was tired of getting a run around and traded to different people thru [sic] this pro (process?). • Inspector has no first hand knowledge.

5. I was given an invoice for $4059.00 that I would owe and I was assured that I was not to pay for anything [s]aid they would take what was given by my insurance company. They already cashed a check for $9336.30 from Sanity (Sentry) Insurance. • Inspector has no first hand knowledge. • Respondent says insurance company covering the extra. • Respondent shall complete the project per original contract agreement and properly executed change orders.

6. The work to be completed per Eagle Adjusting Service (detail) has not been completed. (Insurance job – includes roof replacement, drip edge, painting, metal patio recover, miscellaneous items detailed in insurance documents.) • Respondent shall complete the project per original contract agreement and properly executed change orders. • Though no deficiency was found, the Respondent made a verbal agreement at time of inspection to replace “acrylic” skylight with an industry standard skylight.

7. ADDENDUM - hump at west end of street facing roof. • The “hump” is the transition from main roof span to barge overhang. • No deficiency demonstrated or observed at time of inspection. • No action required by the Respondent.

8. ADDENDUM – Exposed nails at random locations. • Per jobsite agreement, the Respondent will correct by appropriate means. • Respondent shall correct by appropriate means.

8. At the commencement of the hearing, Ms. Boynton advised the tribunal that the only item of complaint that remained at issue was the roof. However, on Friday, October 14, 2011, after the pre-hearing jobsite inspection, Ms. Boynton filed an Addendum to her complaint with the ROC, alleging a leak in the roof over the bathroom and living room, as well as that Gryphon had not completed work on the pool drain strip. At hearing, Gryphon objected to addressing the items contained in the Addendum to the complaint due to insufficient notice. The Administrative Law Judge advised the parties that the items contained in the Addendum would not be considered within the scope of the instant administrative hearing. 9. Inspector Fleetham testified that he performed a pre-hearing inspection on October 14, 2011, at which Ms. Boynton, Thomas, Mr. Hyman, and Gryphon’s counsel, James Pak, were present. Inspector Fleetham testified that all items on the CWO were completed prior to the pre-hearing inspection. Notwithstanding that the Addendum item pertaining to the pool drain strip is not within the scope of the hearing, Inspector Fleetham clarified that the “deco-drain” to which Ms. Boynton referred was not included in the insurance estimate, nor was it included in Gryphon’s contract. Therefore, Gryphon was not obligated to repair or replace it. Ms. Boynton acknowledged that she was unaware until the hearing and the explanation given by Inspector Fleetham that there was a difference between a drain and a strip. 10. Inspector Fleetham testified that there is no deficiency in the way the roof looks. Inspector Fleetham explained that there is a difference between re-roofing with three tab shingles versus architectural or dimensional shingles, as the latter eliminate natural waves. Inspector Fleetham testified that roofs sheathed with three- ply plywood move when walked upon. Inspector Fleetham testified that the “sponginess” about which Ms. Boynton complains, is not a deficiency. Inspector Fleetham explained that Ms. Boynton’s insurance company did not include in Gryphon’s scope of work the removal and replacement of the sheathing, and that the “sponginess” is typical of three-ply plywood. 11. Inspector Fleetham testified that at the pre-hearing inspection, he performed a flood test on the skylight and determined that the skylight leaked. However, while testifying, Gryphon showed Inspector Fleetham photographs of the work it performed to the skylight after the pre-hearing inspection, which included applying mastic and paint around the skylight to prevent further leaks. See Exhibit D. Inspector Fleetham testified that at the pre-hearing inspection, Mr. Hyman stated that Gryphon would correct the deficiency in the skylight immediately, and that from the pictures, it appeared that Gryphon had done so. 12. Ms. Boynton showed a short video of Thomas walking on the roof, attempting to illustrate the “waviness” and “sponginess” of the roof. Thomas testified that when he walked on the roof, it felt like “a trampoline.” 13. Tammy Vaughn, Ms. Boynton’s friend, whose husband is a licensed contractor and who is co-owner of a construction company, testified that she believed the plywood should have been changed out due to the hail damage and the age of the roof. 14. Mr. Hyman testified that the waviness about which Ms. Boynton complained is normal, that it does not affect the functionality of the roof, and that it is simply cosmetic in nature. Gryphon’s scope of work did not include replacing the boards under the roof. Mr. Hyman further testified that the expansion strips in the kool deck were replaced pursuant to the insurance authorization, but that replacing the deco drain would have been much more costly because it is an extensive repair necessitating the need to cut or break the kool deck. 15. Ms. Boynton addressed the item of complaint concerning an invoice she received from Gryphon. Mr. Hyman explained that Ms. Boynton is not responsible for any payments and that any balance due would be issued by her insurance company. Mr. Hyman explained that insurance companies usually hold back the value of depreciation and then issue a check for that amount after a final bill is issued. Mr. Hyman testified that Ms. Boynton will actually receive more money that what is owed to Gryphon, that she will have no out-of-pocket costs, and that she will not have to pay a deductible. Ms. Boynton testified that she feels that the roof “will not last.” However, Ms. Boynton did not present any evidence establishing such assertion. Ms. Boynton testified that she does not like the way the roof looks and “may have to have it replaced for aesthetics.” CONCLUSIONS OF LAW In this proceeding, Ms. Boynton bears the burden to prove, by a preponderance of the evidence, that Gryphon is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(13), namely A.R.S. § 32-1158, and/or (A)(23) as charged by the ROC in its July 29, 2011 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Ms. Boynton failed to meet her burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Gryphon with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible evidence of record failed to establish that Gryphon failed to perform its work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Therefore, the Administrative Law Judge concludes that Gryphon is not in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1158(B), a contractor is required to include the minimum elements of a contract in writing when contracting. Those elements include the name, license number, and business address of the contractor, as well as the fact that the property owner has the right to file a written complaint with the ROC. Ms. Boynton did not address this alleged violation. In view of the foregoing, the Administrative Law Judge concludes that Gryphon is not in violation of A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1158. Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Gryphon a CWO directing it to accomplish specified remedial work within a stated period of time. The evidence of record established that Gryphon performed all corrective work as required by the CWO. Therefore, the Administrative Law Judge concludes that Gryphon is not in violation of A.R.S. § 32-1154(A)(23). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Gryphon’s license. The ROC’s Citation in Case Number 2011-4216, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Gryphon’s license, and that the Citation issued in Case Number 2011-4216, together with the Complaint upon which it is based, 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, November 2, 2011.

/s/ Sondra J. Vanella 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