ALJDEC decisions subject to certification as final

2011A-5009-ROC · Registrar of Contractors · 2012-02-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 16, 2012, at 1:00 p.m. APPEARANCES: Complainant Robert Hinojosa appeared on his own behalf; Respondent Mr. Foam, L.L.C. appeared through Roy Wells, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In January 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. K-42.162010-D for roofing to Mr. Foam, L.L.C. (“Respondent”). On August 31, 2011, the Registrar received a complaint from Robert Hinojosa (“Complainant”) against Respondent regarding its repair of the foam roof on Complainant’s residence at 11311 East Del Golfo, Yuma, Arizona. According to Complainant’s complaint, the roof continued to leak after Respondent performed repairs, and when Respondent performed water tests to locate the leaks, it caused substantial collateral damage to the interior of Complainant’s residence. Complainant requested that the Registrar require Respondent to pay to repair the damage to the interior of his residence. The complaint was assigned to the Registrar’s inspector, Daryl McCloskey, for investigation. On September 27, 2011, Inspector McCloskey performed a jobsite inspection, including a water test on the roof, with both parties present. On October 3, 2011, Inspector McCloskey sent a letter to the parties, informing them that he had determined to close the complaint for the following reason: The water leaks came from the scuppers. There were no leaks at the time of the jobsite. The inspector could not determine if the damage was there before or after the roof repairs.

Inspector McCloskey’s letter also informed Complainant that if he disagreed, he could request in writing that the Registrar issue a citation against Respondent. On October 19, 2011, the Registrar received a letter from Complainant, requesting that the Registrar issue a citation against Respondent. On November 22, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-108, and (17). Respondent timely answered the Citation and Complaint, denying any statutory violations. Respondent affirmatively alleged that all the damage to the interior of Complainant’s residence pre-existed its repairs to the roof. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held from the Registrar’s office in Yuma on February 16, 2012, partly through videoconference and partly telephonically. Inspector McCloskey testified. Complainant submitted nineteen exhibits and testified on his own behalf. Respondent presented the testimony of two witnesses: (1) Roy Wells, its qualifying party and member; and (2) Christy Nash, its member. Additional Evidence Complainant’s residence is 12 years old and had the original flat roof on it. Complainant is not the original owner of the residence. Complainant testified that after his flat roof started leaking, he made a claim to his homeowner’s insurer and that the insurer advised him to wait to make a claim for the damage to the interior of his residence until after the roof leaks were repaired. On or about January 20, 2010, Respondent contracted to apply 1” of foam over Complainant’s roof and to provide a 5-year warranty on the work at a contract price of $4,000.00. Respondent also contracted to apply a temporary patch to immediately stop the worst leak during the time necessary to schedule its crew at an additional cost of $200.00. Respondent did not contract to repair or replace the scuppers at Complainant’s residence. Respondent subsequently shot foam onto Complainant’s roof. Sometime later, Complainant reported to Respondent that the roof was still leaking in one area. Respondent performed a water test to identify the location of the leak, and then fixed the leak. In February 2011, Complainant reported another leak to Respondent. Respondent performed a second water test. Respondent discovered that the source of the leaks was rusting scuppers that drained water from the roof. Mr. Wells was surprised that the scuppers had started leaking after only 12 years. Complainant testified that during the water tests, water cascaded down the wall and caused latex paint to bubble, stains on the drywall, damage to furniture, and a brass lamp to leave a rust mark on the carpet. Mr. Wells testified that when Respondent performed the water tests, it used only enough water to identify the location of the leak and that someone was in the interior of the house to locate the leak quickly. Mr. Wells denied that Respondent’s water tests caused collateral damage to Complainant’s residence and furniture. Mr. Wells testified that he advised Complainant that he should have the scuppers replaced, but that Respondent does not fabricate or install metal scuppers. After Complainant refused to hire another contractor to replace the scuppers, Respondent applied patches to the scuppers, at no charge to Complainant. Respondent also shot foam right up to the scupper opening to minimize the leaks, but did not plug the scupper. Complainant testified that in his opinion, Respondent should be required to replace the scuppers because they are part of the roof system. Complainant submitted photographs that showed dirt on the foam roof that he testified was left by water ponding. Complainant testified that any variance in roof elevation needed to be corrected so that water would drain from the roof and not pond at all. Complainant acknowledged that he had never worked as a professional roofer and that he had formed his opinions based on his research on the internet. Inspector McCloskey testified that all of the areas of the roof that Complainant showed him at the jobsite inspection complied with industry and the Registrar’s standards. The Registrar’s Workmanship Standards for Licensed Contractors at page 27 (February 2009) for foam roofs provides that “[m]inor ponding (up to 1/2” deep in small areas equivalent to no more than 1/3 of span) is acceptable providing roof is dry within 48 hours after rainfall.” Complainant did not submit any evidence of how long water remained on the roof after a rainfall. Inspector McCloskey testified that Complainant had not shown him at the jobsite inspection the area of the roof under the eave that was shown in the photographs in Complainant’s Exhibit C-30. Inspector McCloskey testified that if Complainant had shown him the area, he would have required Respondent to correct it. Inspector McCloskey acknowledged that foaming the area under the eave would have been a tight fit. If Complainant had agreed that Respondent would not foam the area, Inspector McCloskey would not have required Respondent to perform any correction. Complainant testified that he did not agree to anything and Respondent did not submit a written disclaimer. According to the Registrar’s public website, Respondent’s license is current and in good standing. This complaint appears to be the only complaint pending against the license. CONCLUSIONS OF LAW The charged contracting law violations in this matter lie within the Registrar’s jurisdiction to determine.[1] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Respondent did not contract to replace the scuppers. Fabrication and installation of the scuppers after the roof was foamed on Complainant’s residence would have been beyond the scope of Respondent’s K-42 roofing license[5] and requires a C-45 or K-45 license for sheet metal. Respondent’s patching of the scuppers was done at no charge to Complainant and was incidental to Respondent’s repair of the roof. Therefore, Complainant did not establish that Respondent contracted beyond the scope of its K-42 license, in violation of A.R.S. § 32-1154(A)(17).[6] Complainant’s testimony about the volume of the water intrusion during Respondent’s water tests was not credible. Instead, it appears more likely that the damage to the paint, walls, carpet, and furniture at Complainant’s residence pre-existed Respondent’s repair of the roof. Therefore, Complainant did not establish that Respondent’s water tests or poor repairs resulted in collateral damage in the interior of the residence. Complainant also did not establish that Respondent’s foam work on the roof violated the Registrar’s or industry standards, with the exception of the area of the roof under the eave. Complainant established that Respondent’s foam work on the area of the roof under the eave did not comply with the Registrar’s or industry standards. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(3) (namely A.A.C. R4-9-108).[7] RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar suspend Respondent Mr. Foam, L.L.C.’s License No. K-42.162010-D until Respondent has corrected the foam work on the area of the roof under the eave at Complainant’s residence. It is further recommended that if on or before the effective date of the Registrar’s order, Respondent submits written proof that is satisfactory to the Registrar that it has corrected in a professional and workmanlike manner the foam work on the area of the roof under the eave at Complainant’s residence, the Registrar not suspend Respondent’s license but, instead, close Robert Hinojosa’s complaint in Case No. 2011-5009. 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 29, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] A K-42 roofing license allows the scope of work permitted by the commercial L-42 and the residential C-42 roofing licenses. A.A.C. R4-9- 104. A C-42 roofing license allows for “[i]nstallation and repair of materials common to the industry that form a water tight, weather resistant surface for roofs and decks, including all accessories, flashing, valleys, gravel stops, and roof insulation panels above the roof deck” of residential structures, but does not include sheet metal work, like fabrication and installation of scuppers beneath the roof deck. Compare A.A.C. R4-9-103(A) (scope of work for residential C-42 roofing license) with A.A.C. R4-9-102(A) (scope of work for commercial L-42 roofing license, including “sheet metal when installed in conjunction with a roofing project”). [6] A.R.S. § 32-1154(A)(17) includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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