ALJDEC decisions subject to certification as final

2011A-4298-ROC · Registrar of Contractors · 2012-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 12, 2012

APPEARANCES: Complainant appeared on her own behalf along with her husband Todd Horn; Respondent was represented by attorney Rex Christensen, accompanied by corporate President Irma Lopez and authorized representative Julio Lopez.

WITNESSES: Jeff Wills, ROC Inspector Nefretiri Horn Todd Horn Irma Lopez Julio Lopez

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to roofing work done by Respondent after a hail storm damaged Complainant’s roof. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including Complainant’s Exhibits 1 through 6 (photographs), Respondent’s Exhibits A through Q (photographs),[1] and testimony from the witnesses above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violation of the statutes and recommending that Respondent be ordered to perform corrective work and pay a civil penalty. FINDINGS OF FACT 1. Respondent is the holder of license C-42.225129-R issued by the Registrar of Contractors (“ROC”). It is a specialty residential contracting license that authorizes Respondent to install and repair roofing materials for residential properties. The Qualifying Party on the license is Deyro Hernandez. 2. In January 2011, Complainant hired Respondent to replace her shingle roof that was damaged after a hail storm. Respondent performed the work and Complainant was not happy with the work. Complainant filed a complaint with the ROC. 3. In August 2011, ROC Inspector Jeff Wills inspected Respondent’s work and issued a Corrective Work Order (“CWO”) ordering corrective work on two items as follows: 1. Leaking down the wall under back patio: Per both parties, this area has been worked on by the Respondent once before but with the rain the other night, per the Complainant, it still leaks. The area of the leak is at the back patio where it ties into the main house structure. Per the Complainant, he isn’t getting water inside the home but on the exterior block below the patio roof and to the right of the window– it runs down the wall. This area was water tested by the inspector. Within 7-8 minutes of the water test, water was streaming down the exterior block under the patio roof, not substantial but still leaking. Per the Respondents at the time of the inspection, they will fix. Contractor to correct by appropriate means. 2. Back patio roof has a drip: Per the Complainant, this is the same or related to item #1 above. Contractor to correct by appropriate means.

The leak under the back patio (addressed in both items above) was the only issue at the hearing. Inspector Wills testified about his findings at the initial inspection in August 2011. He water-tested the area and it leaked. Respondent was ordered to correct it, and Respondent performed corrective work. 4. Inspector Wills performed a pre-hearing inspection on January 11, 2012, and water-tested the area again. It did not leak. Neither has Complainant asserted that the roof has leaked since Respondent made the last correction. 5. However, Inspector Wills went on to testify that even though the leak had been stopped, Respondent did not perform the corrections to workmanship standards. He explained that the materials used and the look of the repair does not meet workmanship standards.[2] He further explained that about 12 feet of roof-to-wall flashing and a plywood board shown in the photographic exhibits should have been replaced because they are substandard.[3] 6. Respondent provided testimony from Julio Lopez, the foreman on the job, who stated that Respondent verbally asked Todd Horn after the roof tear-off had been done to identify the boards that needed to be replaced. Julio Lopez testified that the board referenced by Inspector Wills was not designated for replacement. Todd Horn denied that testimony, stating that he did not mark boards and that he wanted Respondent to make the decision as to which boards should be replaced. The Administrative Law Judge cannot determine which testimony is more accurate. However, this matter is something that Respondent should have made a written record of at the time, since it involves the scope and duties of Respondent under the contract. Therefore, due to the lack of written documentation that corroborates Julio Lopez’s testimony, the Administrative Law Judge finds Todd Horn’s testimony to be more credible.[4] 7. Respondent also presented testimony from Julio Lopez that Z-bar flashing cannot be replaced. Respondent did not have Inspector Wills clarify his testimony as to whether he was stating that Z-bar needs to be replaced along the patio roof. If so, Respondent asserts that it is not possible because the Z-bar is built-in to the lower edge of the siding. However, because Respondent did not clarify the Inspector’s testimony, the testimonial record is unclear on this issue. Exhibit 4, referred to be the Inspector during his testimony, shows a clear problem with the joint between the house and the patio roof. The evidence shows, therefore, that the joint between the house wall and patio roof has not been properly repaired. 8. The evidence shows that Respondent has stopped the leak, but not in a manner that meets minimum workmanship standards. The roof must be repaired by addressing the problems noted by Inspector Wills. 9. Finally, Complainant presented testimony in an attempt to convince the Administrative Law Judge that Respondent should not be allowed to come back to make the repairs. That testimony reflects problems with communication between the parties and Complainant’s belief that Respondent’s work is substandard. That testimony has been considered by the Administrative Law Judge, but is not sufficient to overcome the longstanding industry and ROC standards that allow a contractor to correct their own errors in most circumstances. The evidence does not support a finding that Respondent is either unwilling or incompetent to make the repairs. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] 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.[7] Complainant has 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.[8] 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 shows violation of those provisions. 3. Although Respondent performed repair work, it did not make the repairs in a workmanlike manner. The plywood board shown by Exhibit 1 is substandard material and needs to be replaced. The joint between the patio roof and wall, shown on the right side of Exhibit 4, does not meet workmanship standards and must be repaired so that it meets standards. 4. A review of Respondent’s license status shows that the license was issued in 2006 and has never been disciplined. This is a good record. 5. The appropriate sanction in this matter is to require Respondent to make the required corrections in the manner specified above. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty for failure to comply with the CWO is warranted in the amount of $150.00. RECOMMENDED ORDER IT IS RECOMMENDED that license C-42.225129-R, held by Irma’s Roofing, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has made the corrections discussed in the findings and conclusions above, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2011-4298 shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanction provided above, Irma’s Roofing, Inc. pay a civil penalty of $150.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, February 1, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent’s Exhibits are found in Respondent’s exhibit notebook, tab 6. [2] See Complainant’s Exhibit 4. [3] See specifically Exhibits 1 and 4. The plywood board in Exhibit 1 (with the corner curling) is the wood referred to by the Inspector. The flashing seen on the right side of Exhibit 4 that runs parallel to the patio roof edge is the flashing that was referred to by the Inspector. [4] The plywood board shown in Exhibit 1 must be replaced. Because the written contract calls for a price per board for wood replacement ($35 or $40 dollars per sheet depending on wood used), Complainant will be responsible for an extra charge for the new wood. [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [8] There are also other citations that were not addressed by the evidence presented at hearing.

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