ALJDEC decisions subject to certification as final

2011A-6938-ROC · Registrar of Contractors · 2012-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2012, at 8:00 am. APPEARANCES: Complainant appeared on her own behalf. Respondent appeared through its authorized representative, Jack W. Latham. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. K-34.182977-D issued by the Registrar of Contractors. 2. This is a residential matter where Respondent performed painting, roofing, and framing work on Complainant’s residence. 3. Respondent’s License No: K-34.182977-D allows for the scope of work permitted by the commercial L-34 Painting and Wallcovering license and the residential C-34 Painting and Wallcovering license. Respondent is not properly licensed to perform framing and roofing work.[1] 4. Complainant stated that she contacted Respondent to obtain a bid for painting work on her residence. During the bid process, Respondent’s representative asked if she wanted to have any other work performed, and she explained that she wanted to have the existing fiberglass patio covers on her residence removed and replaced with metal roofs and to have her concrete patio stained. Respondent’s representative asked if he could place bids for all the work. Complainant then asked if Respondent performed that type of work, and Respondent’s representative stated “Of course.” [2] 5. Respondent then provided Complainant with a written bid to perform all of the painting, framing and roofing work on Complainant’s residence.[3] 6. Respondent knowingly contracted to perform roofing and framing work that Respondent knew was beyond the scope of Respondent’s License No. K- 34.182977-D. 7. The new metal roofs installed by Respondent leaked, and Complainant notified Respondent of the leaking problem and requested prompt appropriate corrective action to avoid further damage to her residence. 8. When Respondent failed to properly resolve the problems with the new metal roofs, Complainant filed a formal Complaint against Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on January 5, 2012. The Agency Inspector issued a written Corrective Work Order directing Respondent to obtain a required building permit and hire properly licensed contractors to fully correct Respondent’s construction work on Complainant’s residence. 10. The Corrective Work Order provides, in pertinent part, as follows: This contractor has a painting license and is not properly licensed to install the metal roofing or to make the structural modifications to the patio covers. The contractor must hire properly licensed roofing and framing contractors to obtain a building permit and all approved inspections for this patio cover modification and to make any corrections. 1. Allegation: Leakage of patio roof (metal) on east side of house. The jobsite inspection found signs of efflorescence on the underside of the metal roofing . The contractor is to determine the cause of the efflorescence and correct by appropriate means. 2. Allegation: Leakage of patio roof (metal) on north side of house. The jobsite inspection found water drip stains at the ledger. The contractor is to determine the cause of the drip stains and correct by appropriate means. 3. Allegation: Dry rot has occurred from leakage. The jobsite inspection found some “painted-over” deterioration of the wood beams and rafters. I cannot confirm that this contractor caused any dry rot. No action required. 4. Allegation: Condensation causing “white spotting” on underside of patio roof. Same as #1. 5. Allegation: Leakage has caused major discoloration & “splotching” of stained concrete under patios (east & west side)-from lack of priming the metal, prior to painting-(has caused “leaching” of zinc in the aluminum). The jobsite inspection found discolored staining of the “stained” concrete slab and shoe marks. The contractor is to correct by appropriate means. 6. Allegation: To (sic) much “patching” over this past year has made the situation impossible to repair (per licensed contractor opinion(s)-2.) This agency expects the contractor to make any/all corrections according to good workmanship standards. 7. Allegation: Total amt. of contract was: $6,000.00. Metal roof’s (sic) $3,000.00. Concrete staining $1,500.00. Paint house $1,500.00 (This item is not included in complaint). This item appears to be a “statement” and not a complaint. No action required. 8. Allegation (added during the inspection): The lower edges of the corrugated metal roof is (sic) sagging and the supports are loose and crooked and broken. The jobsite inspection found that the “one by” wood supports for the lower edges of the metal roof are loose, crooked, broken, etc. and are causing the metal roof edge to sag. The contractor is to correct by appropriate means.[4]

11. The assigned Agency Inspector testified that he conducted a pre-hearing inspection on May 31, 2012, and observed that no corrective work had been performed on Complainant’s residence and that he observed increased deterioration of the staining on the concrete porches.[5] 12. The local building authority requires that a building permit be obtained for the type of framing and roofing work that Respondent performed on Complainant’s residence. Respondent failed to obtain a required building permit from the local building authority.[6] 13. Complainant stated that the moisture penetrating through the leaking metal roofs has caused extensive damage to the appearance of Complainant’s stained concrete porches and has caused portions of the wood framing for the porch roofs to rot. [7] 14. Respondent’s framing and roofing work on Complainant’s residence fails to comply with applicable industry and workmanship standards.[8] 15. This Respondent is not licensed to perform roofing or framing work. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause properly licensed roofing, framing and concrete contractors, of Complainant’s choice and at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order issued in this matter. 16. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on June 11, 2012. Such prior License record reflects that License No. K-34.182977-D of The Latham Consolidated Companies LLC dba: T L Consolidated Painting Co is current and in good standing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. Credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32- 1154(A)(2) (departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner), A.R.S. § 32- 1154(A)(17) (knowingly contracting beyond the scope of the license of the licensee), and A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action). RECOMMENDed order In view of the foregoing, it is recommended that License No. K- 34.182977-D of The Latham Consolidated Companies LLC dba: T L Consolidated Painting Co be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused properly licensed roofing, framing, and concrete contractors, of Complainant’s choice and at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order issued in this matter. It is further recommended that if the Respondent, utilizing properly licensed roofing, framing and concrete contractors of Complainant’s choice, and at Respondent’s sole expense, causes the full accomplishment the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead Respondent’s License shall be placed on disciplinary probation for a period of ninety (90) days. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such 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 tendered. In the event of certification of this 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 the certification. Done this day, June 25, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Rules and Regulations adopted by the Registrar of Contractors, June 2009 p. 32. [2] Exhibit C-9. [3] Exhibit C-8, November 7, 2010 Quotation. [4] January 6, 2012 Corrective Work Order at 1-2. [5] June 1, 2012 Hearing Record at 15:50-20:34. [6] January 6, 2012 Corrective Work Order at 1. [7] December 12, 2011 Complaint at 2. [8] January 6, 2012 Corrective Work Order and photographs in Exhibit No. C- 1-5.

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