ALJDEC decisions subject to certification as final

2011A-925-ROC · Registrar of Contractors · 2011-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 1, 2011

APPEARANCES: Complainants appeared on their own behalf with Pete Serna acting as the lead representative; Respondent was represented by its Acting President and Qualifying Party Scott Rovelli.

WITNESSES: Rick Oelke, ROC Inspector Pete Serna Jason Housand, Superintendent, Diversified Roofing Bruce Beckwith, Red Sky Construction, Gen. Contractor Scott Rovelli

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. Complainants ask for an award of restitution so that they can have other contractors make the necessary repairs. Respondent admits that it made errors in the installation and would like to correct them. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including Complainants’ Exhibits 1 through 25 and Respondent’s Exhibits A through P, 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 that Respondent must pay restitution or have its license suspended. FINDINGS OF FACT 1. Respondent is the holder of license K-5.148840-D, a restricted dual specialty contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to install gutters and downspouts for both residential and commercial projects. Scott Rovelli is the Qualifying Party. 2. In January 2011, Complainants hired Respondent to install gutters and downspouts at their residence. The job was to cost $500.00.[1] Respondent performed the work, completing portions of it, but caused damage to some scuppers and to portions of the home’s stucco before finishing the work. A dispute then arose between the parties that caused the job to remain incomplete, which is its current state. 3. ROC Inspector Rick Oelke observed the jobsite and issued a Corrective Work Order (“CWO”) on February 24, 2011. The CWO found the job to be incomplete and that Respondent damaged drip edge and stucco in its attempt to install the gutter at the rear patio area. The CWO ordered Respondent to hire appropriately licensed contractors to repair the damage and for Respondent to finish the job. 4. Respondent admits that it damaged the home at the rear patio area and that other corrective work is needed in the front. The evidence, based on Inspector Oelke’s testimony and the photographs provided in Exhibit 23, shows this damage. 5. The dispute in this case is focused on Complainants’ wish to hire other contractor’s to finish the work and make the repairs. They claim that it is reasonable to for them to hire others to do the work in this circumstance. Respondent disputes this. Complainants have gathered bids from other contractors for the work that remains to be done. Complainants have not allowed Respondent to perform further work on the home after the CWO was issued because they did not trust Respondent’s proposed method of repair. 6. Inspector Oelke’s testimony supports Complainants’ claim that Respondent’s installer should have recognized the potential for problems with Respondent’s proposed method of installation at the rear patio because a scupper was not level with the others. This was an obvious condition. The installer proceeded anyway and damaged the area, creating further problems with installation of the gutter. This is good reason for Complainants to lose trust in Respondent’s ability to do the job. 7. In addition, the relationship between the parties has deteriorated to a great degree. This is supported by correspondence between the parties that is part of the evidence.[2] 8. Complainants presented the following evidence regarding the costs of making repairs and completing the project: a) Replace scuppers (and re-flash) by the original roofer (Diversified Roofing) for $450.00.[3] b) Repair stucco by Enterprise Stucco for $261.86.[4] c) Painting work by Red Sky Construction for $179.00.[5] d) Removal of wrongly placed gutter by Diversified Roofing for $225.00.[6] e) Temporary cover of damaged area of roof by Diversified Roofing for $95.00.[7] f) Replacement of rear gutter and repair of front gutter by Custom Flow Enterprises for $360.00.[8]

Total costs = $1,570.86

Using the total above and taking out the contract price of $500.00, Complainants’ restitution is calculated at $1,070.86. That amount will put Complainants in the position that they would have been but for Respondent’s poor work. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[9] Further, the standard of proof at hearing is by preponderance of the evidence.[10] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[11] Complainants have met that burden regarding workmanship. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1) (abandonment of a job without legal excuse), (A)(2) (failure to follow plans, specifications, or building codes), (A)(A)(3) by way of ROC Rule R4-9-108 (failure to meet workmanship standards) and (A)(23) (failure to comply with an ROC Corrective Work Order). The evidence shows violation of the workmanship provision. 3. The evidence does not show violation of (A)(1) or (A)(2) because Respondent did not abandon the job, nor was it shown that Respondent failed to meet manufacturer’s specifications or building codes. Additionally, the evidence does not show a violation of the CWO because Respondent was denied approval and access to make the repairs. 4. The evidence does show that Respondent failed to meet workmanship standards in violation of (A)(3). It also shows that Complainants were reasonable in seeking others to perform the repairs and completion of the work due to the lost trust in Respondent, which this tribunal finds to be reasonable under the circumstances. 5. The appropriate sanction in this matter is to require Respondent to pay restitution to Complainants in the amount of $1,070.86. If Respondent does not do so in a timely manner, the license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license K-5.148840-D, held by Diamond Gutter, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that has paid Complainants $1,070.86 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 2011-925 shall be closed.

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, July 21, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The original agreement price was $500.00 and then an optional portion of gutter was added for $95.00. That option was later rejected by Complainants before any work on it was done, taking the agreement back to $500.00. [2] Without getting into details, the correspondence is found in Exhibits 1, 5, 6, 7, 8, and 9. Also, see Respondent’s Exhibits F, G, H, J, K, M, and N. [3] Exhibit 6. [4] Id. [5] Exhibit 12. [6] Exhibit 21. [7] Exhibit 12. [8] Exhibit 18. [9] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [10] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [11] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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