ALJDEC decisions subject to certification as final

2011A-605-ROC · Registrar of Contractors · 2012-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 6, 2012

APPEARANCES: Robert Rutila of Ridenour, Heinton and Lewis PLLC, Attorney for Complainants; Amy Bobbitt and David Marshall, Complainants; Michael Jackson, Respondent’s LLC member and representative; Buzz Walters, Respondent’s General Manager

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ FINDINGS OF FACT 1. This matter was set as a compliance hearing to determine whether CMR Roofing & Construction of AZ LLC (“Respondent”) has complied with a Default Decision and Order issued by the Registrar of Contractors (“Registrar” or “ROC”). The Default Decision and Order suspended Respondent’s K-42.224631-D License until Respondent provided written proof that it had appropriately rectified the corrective work described in a complaint filed by Amy Bobbitt (“Complainant Bobbitt”) and a Corrective Work Order (“CWO”) issued by the Registrar. The tribunal entered the full complaint file received from the Registrar into the record. Respondent is the holder of License No. K-42.224631-D. 2. Respondent’s license authorizes Respondent to install residential and commercial roofing. Kathy Lee Dunn is Respondent’s Qualifying Party. On or about February 4, 2011, Complainant Bobbitt filed a complaint with the ROC regarding workmanship issues associated with the roofing job performed by Respondent on her home. 3. On February 22, 2011, an investigator for the ROC issued a CWO, which provided, in pertinent part, as follows:

The contractor is to correct the following as per approved standards, manufacturer’s installation recommendations and in accordance with jobsite agreement

Complaint 2) Nails used on west side of roof are not long enough and they do not go into the decking: Nail heads have blown thru shingles on the edges of the west gable/rake.

Complaint 3) tips were not cut into the valleys: Properly cut tips into valleys.

Complaint 5) nails are sticking out under the eaves most of the way around the house: Nail tips protruding on the underside of roof sheathing on rear eaves and rear half of left (west) eaves.

Complaint 6) The shingles are hanging too far over the edge of the house and are starting to curl: Starter shingle courses around the eaves of the roof are not performed in a professional workmanlike manner. Contractor is to follow approved standards and manufacturer’s recommendation as to how far shingles may extend over the eaves when metal drip edge is used.

Complaint 7) bottom of roof jack flanges are buried: Flashing flanges of the roof jacks were not performed in a workmanlike manner. Contractor is to follow approved standards and manufacturer’s recommendation as to how to properly apply jack flanges/flashing.

Complaint 9) metal drips are not lined up: Metal drip edge on the east rake is not performed in a workmanlike manner. Contractor is to follow approved standards on installation of metal drip edge flashing.

Complaint 10) gutter side of home metal laps are not nailed properly: Observed that metal drip edge was not installed in a professional and workmanlike manner. Contractor installed drip edged by notching around the gutter hangers and exposing the sheathing and shingle underlayment to the elements.

No action required of the following

Complaint 1) Installed ridge vent with no gable or soffit vents: Contractor installed ridge vent and two turbine type roof vents as per contract and insurance company claim payout instructions.

Complaint 4) nails were not properly installed: This inspector did not observe improper nailing pattern at the jobsite inspection.

Complaint 8) wood replaced was not painted and does not line up: Respondent installed new fascia boards as directed and contracted, contract did not stipulate that contractor was to paint also.[1]

4. On April 8, 2011, the Registrar issued a Citation and Complaint against the Respondent alleging potential violations of A.R.S. § 32- 1154(A)(3),[2] (13),[3] (14),[4] and (23).[5] 5. Respondent failed to file a timely written answer. On June 24, 2011, the ROC issued a Decision and Order notifying Respondent of the ROC’s intent to suspend Respondent’s K-42.224631-D License on the effective date of the Decision and Order. It further specified that the suspension would continue “until Respondent provided written proof that it had appropriately rectified the corrective work involved and detailed in the Complaint and the agency’s written directive.”[6] The Decision and Order stated that the suspension would not take place if Respondent supplied proof of compliance prior to the effective date of the order. The Decision and Order also ordered Respondent to pay a $250.00 civil penalty. 6. On August 4, 2011, Respondent submitted a Petition for Rehearing. On August 23, 2011, the ROC issued an Order Rejecting Respondent’s Petition for Rehearing as Untimely.[7] Respondent’s license was suspended on August 25, 2011.[8] 7. In September and October, 2011, Respondent submitted letters to the ROC alleging that Respondent was denied access to the jobsite because the roof had already been replaced.[9] After Amy Bobbitt and David Marshall (“Complainants”) had an opportunity to respond, the ROC set the matter for a compliance hearing.[10] The Notice of Compliance Hearing stated that the issues to be considered at hearing concerned compliance with the agency’s directives, interference with attempts to comply, and unreasonable denial of access.[11] 8. At the hearing, Complainant Bobbitt testified that after the June 24, 2011 Decision and Order was issued, she was not contacted by Respondent until September 11, 2011, when Buzz Walters, Respondent’s General Manager, emailed and phoned Complainants asking to complete the work. However, Complainant Bobbitt said, the roof had already been replaced by then[12] because, as she stated, she was concerned that it would rain and her home would be damaged if the roof was not completed. 9. Mr. Walters testified at hearing that his first contact with Complainants was in mid-September 2011 when he called and emailed them to complete the corrective work. He said he had no contact with Complainants prior to that and that he had no direct knowledge of earlier events. 10. Michael Jackson, Respondent’s LLC member, testified that he never had any direct communication with the Complainants concerning this case, but he remembered hearing that Respondent was denied access to the home twice right after the CWO was issued and people were “up in arms” about it because they couldn’t complete the work. He argued that Respondent did its best to get access to the home and complete the repair work. CONCLUSIONS OF LAW 1. The Respondent has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence.[13] 2. The Registrar’s June 24, 2011 Decision and Order determined that Respondent’s K-42.224631-D License would be suspended on the effective date of the Order “until Respondent provided written proof that it had appropriately rectified the corrective work involved and detailed in the Complaint and the agency’s written directive.”[14] 3. Although Respondent’s representative, Michael Jackson, alleged that he had heard around his office that Complainants had denied access to the jobsite around the time of the CWO, the events that transpired prior to the June 24, 2011 Decision and Order are barred by Respondent’s failure to timely file a written answer to the Citation and Complaint. Therefore, his testimony regarding attempts to comply around the time of the CWO was not relevant. 4. Mr. Walters’ testimony only established a contact with Complainants in September 2011. It did not establish that Respondent complied with the Registrar’s directives or any unreasonable actions by Complainants. 5. Complainants did not deny Respondent’s allegation that the roof had been replaced before September 2011, but Respondent offered no evidence that replacing the roof was unreasonable in any way. Complainant Bobbitt’s statement that she was concerned that her open unfinished roof was exposing her home to potential rain damage established a reasonable basis for completing the roof. 6. Having failed to establish that it has completed the required work, Respondent’s only means of ending its suspension, according to the June 24, 2011 Decision and Order, was to establish that Complainants either unreasonably interfered with Respondent attempts to comply or that Complainants unreasonably denied Respondent access to the jobsite. No evidence or legal argument was presented at hearing to establish that Complainants acted unreasonably in completing their roof. Respondent offered no evidence that it made any reasonable attempts to arrive at a financial settlement with the Complainants. Respondent offered no other legally recognized basis for lifting Respondent’s license suspension through a finding of compliance. RECOMMENDED DECISION Based upon the foregoing considerations, it is hereby recommended that the Respondent’s K-42.224631-D License be immediately suspended on the effective date of the Registrar’s order.

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 five days from the date of the certification. Done this day, August 27, 2012.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] CWO dated February 22, 2011, AER, Agency record, at Rcc014. [2] Namely, A.A.C. R4-9-108, which refers to workmanship issues. [3] Namely, A.R.S. § 32-1158, which refers to the minimum elements of a contract. [4] Which refers to knowingly entering into a contract with a person not duly and properly licensed to perform the work required. [5] Which refers to failure to comply with a CWO. [6] See Decision and Order, Agency Electronic Record (“AER”), Agency record, at Rch397. [7] AER, Agency record, at Rch331. [8] AER, Agency record, at Rch360. According to the ROC’s website, Respondent’s license suspension was lifted on March 27, 2012. [9] AER, Agency record, at Lg Motions1.pdf. [10] AER, Agency record, at Lg Motions2.pdf. [11] Although the Notice of Compliance Hearing referred to Complainant (singular), the ROC added David Marshall as a party complainant after the Complainants filed a claim to the Residential Contractor’s Recovery Fund. AER, Agency record, at Rf Claim Filed1.pdf, page 1. [12] See Exhibit 10, which implies that Complainants had the roof replaced around April 14, 2011. [13] A.A.C. R2-19-119. [14] See Decision and Order, Agency Electronic Record (“AER”), Agency record, at Rch397.

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