ALJDEC decisions subject to certification as final

2012A-2131-ROC · Registrar of Contractors · 2013-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2013, at 8:00 a.m. APPEARANCES: Complainant Joy Plote appeared on her own and her husband Joel Plote’s behalf; Respondent Aladdin Roofing LLC was represented by Kevin M. Estevez, Esq., and James Nicholas Hanson, Esq., Lang Baker & Klain, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 42.195596-R to Aladdin Roofing LLC (“Respondent”). On or about April 24, 2012, the Registrar received a Complaint from Joel and Joy Plote (“Complainants”) against Respondent regarding its installation of a new roof on Complainants’ house and garage at 1708 North 15th Avenue, Phoenix, Arizona. According to the Complaint, the amount of the parties’ contract was $17,243.64, Respondent had been paid $11,160.68, and Respondent was owed $6,082.96. Complainants requested that the Registrar require Respondent to do the following to resolve their Complaint: Reimburse the homeowner for out of pocket expenses and contractual failings. Payment to homeowner for work completed 7/2011. An accurate accounting of monies owed. Send completed and accurate documentation to Ocwen Mortgage company. A professional review of their business practices.

The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(9). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on January 14, 2013. The Registrar’s inspector, Phil Coscia, testified pursuant to Respondent’s subpoena. Complainants submitted ten exhibits and Complainant Joy Plote testified on Complainants’ behalf. Respondent submitted seventeen exhibits and presented the testimony of two witnesses: (1) Mark Darren Hiser, Respondent’s qualifying party and member, and (2) Larry Walker, Respondent’s former employee who was the job superintendent on Complainants’ project. Two American Sign Language interpreters provided translation of the hearing for Complainant Joel Plote. Additional Evidence Complainants’ roof was damaged by a hailstorm in October 2010. Complainants’ roof is mostly asphalt shingles with a tile ridge cap. On or about April 12, 2011, Complainants met with Respondent’s salesperson to discuss repairing or replacing their roof. Mrs. Plote testified that the parties entered into a contract on that date, but Mr. Walker and Mr. Hiser denied that any contract was signed on that date. No written contract dated April 2011, was submitted at the hearing. On or about June 6, 2011, Complainants signed to accept Respondent’s proposal to replace the pitched roof on Complainants’ house for a total contract price of $16,523.64. Respondent started the project. Complainants endorsed to Respondent their homeowner’s insurance company’s check in the amount of $5,361.97 dated July 21, 2011. Mr. Walker testified that after Respondent removed the old roof, it identified additional repairs that that were needed to comply with code. On or about June 25, 2011, Complainants signed to accept Respondent’s change order to reroof the flat roof above the mud room and to replace eleven sheets of plywood for a total additional cost of $720.00, for a total revised contract price of $17,243.64. During the project, Respondent’s truck damaged awnings on the side of Complainants’ house. Respondent replaced or repaired the awnings. On or about August 30, 2011, Mrs. Plote signed a job completion agreement and conditional waiver and release upon final payment, certifying that Respondent had completed all the work described in the contract to her satisfaction. Complainants endorsed to Respondent their homeowner’s insurance company’s check in the amount of $5,798.71 dated October 5, 2011. Complainants became dissatisfied with the way that Respondent’s subcontractor had re-installed the air conditioner. Mr. Walker testified that Complainants complained that the air conditioner was not level because Respondent had removed two layers of roofing and only installed a single layer, affecting the alignment of the air conditioner stand. After Complainants expressed their dissatisfaction, Respondent’s subcontractor corrected the installation of the air conditioner. After Respondent completed the project, Complainants experienced a problem with a toilet in one of their bathrooms. On or about January 23, 2012, a plumber that Complainants hired discovered that the new roof had been installed over a vent pipe. No evidence was submitted to establish who cut the vent pipe. Respondent paid a plumber to install the vent pipe through the roof. Complainants believed that Respondent had damaged a couch by dripping roofing tar on it when it replaced a skylight. Mr. Hiser testified that he offered to pay for a professional cleaning company to clean the couch, but that Mrs. Plote declined. Mrs. Plote testified that although Complainants’ homeowner’s insurer paid Respondent to replace the tiles on the ridge cap, Respondent reused the tiles. Respondent pointed to the description of work on the insurance adjuster’s approval form that stated that Respondent was to “Detach & Reset Ridge cap – tile.” Mr. Walker testified that because the tiles were brittle, many broke. Mr. Walker testified Respondent used tile from another job that matched the remaining tiles to replace some of the broken tiles and when Complainants complained, purchased new tiles. Inspector Coscia testified that because it appeared that Complainants’ workmanship complaints were repaired by others, he did not perform a jobsite inspection after he was assigned the Complaint for investigation. Mrs. Plote testified that her insurance company called her at least thirty times to request Respondent’s invoices. Complainants submitted an invoice from Respondent addressed to Complainants’ insurance company dated August 31, 2011, that showed the sub grand total of $18,336.06, overhead and profit of $3,667.21, state, county, and city taxes of $1,465.97, for a grand total of $23,469.24. Mrs. Plote testified that she still has not received an invoice that shows the correct amount due. Mr. Walker testified that Complainants never authorized Respondent to communicate directly with Complainants’ homeowner’s insurer. Complainants submitted Respondent’s April 12, 2012 statement that showed a principal amount owed of $5,362.96 and finance charges in the total amount of $800.44. Mrs. Plote testified that even though Respondent failed to submit accurate invoices, it attempted to assess late charges against Complainants. Complainants’ homeowner’s insurer made the last payment jointly payable to Complainants and to their mortgage company. Mrs. Plote testified that Respondent’s failure to issue accurate invoices caused Complainants’ mortgage company to hold the final check for the project. Mrs. Plote acknowledged that Complainants’ mortgage company eventually released the final payment to Complainants and that they have not paid Respondent any additional monies for the project. Mrs. Plote testified that Mr. Plote worked on the project and that Respondent agreed to pay him for his work. Mr. Hiser and Mr. Walker testified that they were not aware that Mr. Plote had done any work on the project or that Respondent had agreed to pay him for his work. No evidence was submitted to establish the nature of the work that Mr. Plote allegedly performed on the project and no documents were submitted to establish Respondent’s agreement to pay for such work. Respondent submitted an invoice dated July 11, 2012, that showed the contract amount of $16,523.64, the $720 change order, a charge for $675.00 for the conditioner, the $5,361.97 and $5,798.71 payments, and credits to Complainants in the amounts of $5,747.64 and $1,010.32, for a balance due of $0.00. Mr. Hiser testified that Respondent gave Complainants a nearly $7,000.00 credit for Mr. Plote’s work and the plumbing invoice to resolve the Complaint that Complainants had filed with the Registrar. Mr. Hiser testified that the parties never discussed Mr. Plote’s work and that Complainants never provided the plumber’s invoice to Respondent. Mr. Hiser testified that although Respondent fully performed the parties’ contract, it does not seek additional payments from Complainants. Mrs. Plote acknowledged that Respondent fully performed the contract, including correcting any deficiencies that Complainants identified. However, Mrs. Plote requested that the Registrar’s record reflect Respondent’s unprofessional conduct during the course of its contract performance. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainants bear the burden of proof to establish that Respondent violated the statutes that were charged in the Citation and Complaint by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] Complainants did not establish that Respondent failed to replace Complainants’ roof in a professional and workmanlike manner and in compliance with applicable code requirements or that it failed to repair in a professional and workmanlike manner any of the items that were incidental to the roof replacement. Therefore, Complainants did not establish that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[4] Respondent completed the roof replacement for at least $6,082.96 less than the contract amount. Therefore, Complainants did not establish that Respondent violated A.R.S. § 32-1154(A)(9).[5] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainants Joel and Joy Plote’s Complaint in Case No. 2012-2131 against Respondent Aladdin Roofing LLC’s License No. C- 42.195596-R shall be dismissed. 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, January 30, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] A.R.S. § 32-1154(A)(3) 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.” [5] A.R.S. § 32-1154(A)(9) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”

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