ALJDEC decisions subject to certification as final

2011A-5318-ROC · Registrar of Contractors · 2012-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14, 2012 APPEARANCES: Michael Rafi appeared personally and he was represented by his attorney, Kathy McCoy O’Quinn, Esq. of O’Quinn Law, P.C. Globe Processing Services, Corp., doing business as Young Builders Roofing, was represented by its attorney, Steven A. Adelman, Esq. of Adelman Law Group, L.L.C. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Globe Processing Services, Corp., doing business as Young Builders Roofing (“Respondent”), is the holder of License No. K-42.205924-D, a dual residential and commercial roofing contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 10, 2010, Respondent entered into a Proposal and Contract with Enterprise Floors, L.L.C., through Michael Rafi (“Complainant”), a member of Enterprise Floors, L.L.C., to perform roof work at the business’s roof located at 2235 North 35th Avenue, Phoenix, Arizona. The total stated contract price was $17,709.52, including tax.[1] 3. By check dated December 10, 2010, Complainant paid Respondent a down payment in the amount of $3,340.00. The payor of the check was 2235 Property, L.L.C., of 2235 North 35th Avenue, Phoenix, Arizona. That sum of money is the total amount Respondent has received for its work on the subject project. 4. On September 16, 2011, Complainant filed a written Complaint with the Registrar alleging that Respondent failed to complete the project. The Complaint lists a completion date of January 20, 2011, and the last date Respondent performed work on the project as February 5, 2011. The Complaint was filed after Respondent initiated a civil lawsuit seeking payment of the remaining contract price from Complainant, et al,[2] in Case No. CV 2011-052519 in the Superior Court of Maricopa County. 5. The Registrar designated Complainant’s Complaint as Case No. 2011- 5318. 6. On October 4, 2011, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view Respondent’s workmanship. By letter dated October 21, 2011, Inspector Alyea advised the parties of his findings, as follows: The 2x8 parapet cap that was not installed at the west and sides of the building in [the inspector’s] opinion was not necessary. But the contractor should credit back the complainant for not installing the 2x8. The way that the contractor covered up the vent holes and applied the foam is a proper install. Also the way that the whole foam was installed to the roof, is acceptable.

7. On October 17, 2011, a Notice of Decision of Arbitrator was issued in Case No. CV 2011-052519. The arbitrator found in favor of Respondent in the amount of $13,926.29, plus 18% interest since February 7, 2011. The parties’ civil lawsuit is still pending. 8. Notwithstanding Inspector Alyea’s determination, Complainant requested that a Citation and Complaint be issued to Respondent and that an evidentiary hearing be scheduled. 9. The Registrar issued a Citation and Complaint in Case No. 2011-5318 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108. 10. At the hearing, the following issues were addressed: 1) Respondent’s warranty of the roof; 2) the 2 X 8 parapets; 3) the 1” foam; 4) the sloping of the flat roof; 5) the covering of the skylights; and 6) the T-tops. 11. Inspector Alyea testified consistently with the findings contained in his October 21, 2011 report. Respondent’s Warranty 12. Respondent issued a Warranty for the installed Duragard Roof System for a period of ten years from the date of completion, subject to receipt of payment in full for the project. Therefore, any concerns about the structural integrity of the roof are moot because Respondent has warranted the roof for ten years. The 2 X 8 Parapets 13. There was credible testimony that Respondent included the 2 X 8 parapets in the parties’ contract because it could not be determined at the time of estimating whether the new parapets would be needed to fasten the new metal flashing. However, after the existing roof was removed, Respondent determined that the existing parapets could be used and that the new 2 X 8 parapets were not needed to fasten the metal flashings. Therefore, Respondent deleted that scope of work. Inspector Alyea did not disagree with that decision. Respondent gave Complainant a credit for not installing the 2 X 8 parapets. 1” Foam on Roof 14. Complainant failed to present credible evidence that Respondent failed to apply 1” of foam on the new roof. To the contrary, Respondent presented credible evidence that it allowed Complainant to measure the roof wherever he wanted to test the foam thickness and that it measured at least 1” in each test location. The Sloping of the New Roof 15. Complainant’s renovated roof is determined to have positive drainage of water off the sides of the roof in a workmanlike manner. There is no credible evidence of ponding water on the roof or leakage in the roofing system. The Covering of the Skylights 16. Respondent removed 15 skylights from Complainant’s roof pursuant to contract. Respondent then used plywood to cover the roof openings and applied at least 1” of foam over the plywood. Respondent is determined to have performed this scope of work in a workmanlike manner. Any concerns Complainant may have about the durability of the plywood would be addressed under Respondent’s ten-year warranty. The T-tops 17. Respondent relied upon Complainant and his employees to identify which T-tops were abandoned on the roof so that they could be removed and the roof openings covered. Respondent is determined to have properly removed such abandoned T-tops identified by Complainant or his employees and repaired the roof openings in a workmanlike manner. Workmanship Standards 18. The evidence of record established that Respondent performed its scope of work on the subject project in compliance with workmanship standards. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record credibly established that Respondent’s performance of its scope of work on the subject project meets workmanship standards. Therefore, Respondent did not violate the provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. 2011-5318 shall be dismissed on the effective date of the Order entered in this matter. 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, April 2, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Proposal and Contract listed a base bid of $16,700.00 plus sales tax of $1,000.52 for a total of $17,709.52. Someone put an “X” through the sales tax and total, but no initials appear. The parties are in a financial dispute as to the total contract price. [2] The Defendants are Enterprise Floors, L.L.C., 2235 Property, L.L.C., Complainant, and Tara Rafi.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826