ALJDEC decisions subject to certification as final

2012A-2255-ROC · Registrar of Contractors · 2012-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2012, at 8:00 a.m. APPEARANCES: Catherine L. Devlin and Maarten Schalekamp (hereinafter “Complainants”) appeared through Catherine L. Devlin. Flat Roof Experts LLC (hereinafter “Flat Roof”) failed to appear. 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. Flat Roof is the holder of License No. K-42.237681-D issued by the Registrar of Contractors. 2. This is a residential matter where Flat Roof installed a new roof on Complainants’ residence for the sum of $8,740.00. 3. Complainants were dissatisfied with Flat Roof’s workmanship and demanded that Flat Roof properly correct its poor workmanship on their roof. 4. After Flat Roof failed to comply with Complainants’ demands, Complainants filed a formal Complaint against Flat Roof with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Randy Cason (hereinafter “Inspector Cason”), conducted an onsite inspection. Inspector Cason issued a written Corrective Work Order on June 1, 2012, directing Flat Roof to perform designated corrective work on Complainants’ roof. 6. The Corrective Work Order provided, in pertinent part, as follows: For this Corrective Work Order, the Respondent is to correct all complaint items listed by the Complainant in this formal complaint per the contract specifications, required building codes of the Town of Fountain Hills and Industry standards by appropriate means;

They are as follows [:]

Complaint #1 - First 3 rows of roof tile, edges and ridge are not fastened (nailed). Went on the roof; verified that the roof tiles [were] not secured properly as stated per the building codes and industry standards. On the West Bay Roof[,] the ridge cap roof tiles are sliding off the roof (not secured). Tiles at the entry (East side) are sliding down the roof. East side of house, bay roof tiles sliding down. Over all[,] poor workmanship through out this project. East bay flashing is not installed properly, rock is holding up roof tile next to hip ridge board.

Complaint #2 - Hip and ridge enclosures must be installed. Verified that there is no enclosure installed at these locations per building codes or industry standards requirements.

Complaint #3 - Valley metal must transition back on top of tile. Verified that the valley metal transitions installed at these locations are not installed per building codes or industry standards requirements. Front pop out[,] east side of roof, flashing is short allowing rain water to run down the face of the exterior wall.

Complaint #4 - Channel metal at fire place must transition back on top of tile. Verified that the metal flashing installed around the fireplace stack is not installed properly per the building codes or industry standards requirements. Could see holes in the flashing over lapping the corners.

Complaint #5 - Several areas of exposed underlayment that will [deteriorate] prematurely. Verified that there are areas where the underlayment is exposed to the elements of weather. The underlayment is not installed per the building codes or industry standards requirements. Areas such as the front entry at ridge line, underlayment is exposed. This type of installation of the underlayment is through out the project.

Complaint #6 - tile have been stretched (incorrect overlap of tile). Verified that the coverage of the roof tiles does not cover the roof properly. Areas such as the East Bay Roof, tiles are short of the hip ridge board line. At the back of the garage, the barge tile cap is short on the left side. Around the fireplace, the tiles are cut short at the ridge side. There are broken tiles through out the installation of the new roof. The tiles that run [along] the valleys are not installed properly (un-professional and [not] workmanlike).

Complaint #7 - Underlayment used is not normal application for Arizona and was not fastened correctly. Verified that there are areas where the underlayment is not secured properly. The underlayment is not installed per the building codes or industry standards requirements. Around the edges of the roof, could see where the underlayment was pulling away and up from the roofs plywood.

NOTE: Not able to determine if the wrong type of underlayment was used by the Respondent or not. The Respondent is to comply with the contract specifications regarding this issue.

The following issues listed are a narrative description from the Complainant regarding this complaint and have been verified by this Inspector.

The Respondent is to correct all complaint items listed by the Complainant in this formal complaint per the contract specifications, required building codes of the Town of Fountain Hills and Industry standards by appropriate means[:]

1. Almost everywhere, along the edges of the roof, the felt does not appear to be tacked/nailed down. It is already curling in places, it does not lay flat in most places — and honestly I cannot understand how the roof is protected from rain when the felt is loose like this. I am highly concerned about this. Although this situation exists everywhere, places in particular of note are the west side of the house above the small shower windows where the felt is curled up under the tile, also by that bay window on west side of house. But also in many many more places.

2. In several places, the felt is not trimmed neatly at all, in fact appears quite sloppy. An example is in the front over the garage.

3. In several places, you can very easily see the printed labeling on the material you used which does not give a nice appearance to the house at all, especially over the bay windows but also along the top of the house, visible from the street

4. I expressed to you my concern about the gaps where birds had obtained access to the loft over the years and where we had work done to put wire mesh barriers in place, and that your people must take great care to ensure these mesh barriers were put back in place snuggly. They have not been. Both at the back of the garage (inside corner with the house, over the kitchen window area) and at the front of the house/garage (right hand side of garage along ridge of roof to house), the wire mesh is not properly refitted and birds can (and we believe have already) gained access.

5. There are broken tiles in certain places, especially visible above the bay window “arch” area at the back of the house (so[.] left side of back of house, over master bedroom window). The valley along the right side of that bay arch looks terrible. It is very sloppy, a wide unprotected area, and broken tiles in several places.

6. Looking at the roof from the back of the house, far right side, looking up at the tiles going along the edge from bottom to top — tiles are not even/flat.

7. The eastside of the house, the cement used above the bay window was very sloppily applied with it now on the stucco of the house.

8. East side of the house, bay window, on the left side there is a black patch on the wall where there appears to be no canvas, no nothing — unprotected. On the right, I don’t know what is going on there. You’ve used a rock to hold up the tile? Felt looks sloppy, tiles look sloppy, labeling visible.

9. The “finishing” around the chimney, at the base, is very sloppy. Again, it isn’t tacked down — looks like rain could very easily get under the material. Similarly the various venting pipes in the roof, the areas surrounding the vents appear sloppy and don’t appear to be water tight.

10. We have found dozens of nails scattered around the yard. We would have expected these to have been tidied up. Also, the nails used were so long that they have gone through the roof’s overhangs in many places.

7. Inspector Cason testified that no pre-hearing inspection was performed on Complainants’ roof because Flat Roof failed to perform any corrective work on the roof. Inspector Cason stated that “everything” on Complainants’ roof required proper correction. Inspector Cason testified that Flat Roof’s construction work on Complainants’ residence failed to comply with applicable workmanship and industry standards. 8. Catherine L. Devlin (hereinafter “Ms. Devlin”) testified that when Flat Roof failed to comply with the terms of the Corrective Work Order, Complainants retained another licensed roofing contractor to properly remove and replace their “leaking roof” to prevent further interior damage to their residence. Complainants’ actions in causing a licensed roofing contractor to remove and replace their roof were shown to be reasonable and justified under the circumstances. 9. Ms. Devlin testified that Complainants received nothing of value for the $8,740.00 that Complainants paid to Flat Roof. Ms. Devlin stated that Complainants were required to remove and replace the entire roof. 10. The roof inspection report prepared by ProCap Roofing Services LLC[1] indicates that the roofing work performed by Flat Roof on Complainants’ residence failed comply with applicable workmanship and industry standards and was not compliant with applicable code requirements. ProCap Roofing Services LLC found that “with existing conditions of tile roof ProCap Roofing can not perform any repairs at this time.”[2] 11. Administrative notice is taken of Flat Roof’s prior license record as reflected on the Registrar of Contractors’ public website on October 24, 2012. Such prior license record reflects that of License No. K-42.237681- D of Flat Roof was suspended for lack of bond on October 7, 2012. 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. Every item on Complainants’ Complaint was verified by the assigned Agency Inspector. The roofing work performed by Flat Roof failed to comply with applicable workmanship and industry standards and failed to comply with applicable code requirements. This Tribunal concludes that Flat Roof violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[3] 4. Flat Roof failed to take appropriate corrective action to comply with the written Corrective Work Order issued by the Registrar of Contractors. This Tribunal concludes that Flat Roof violated the charged provision of A.R.S. § 32-1154(A)(23).[4] 5. A.R.S. § 32-1156.01 provides, in pertinent part, as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

Because Complainants established that they had to replace the roof that Flat Roof installed to prevent further collateral damage to their home’s interior, Complainants established that they are entitled to restitution under A.R.S. § 32-1156.01.

RECOMMENDed order

In view of the foregoing, it is recommended that on the effective date of this Order, License No. K-42.237681-D of Flat Roof shall be revoked unless the Registrar of Contractors receives and accepts written proof that Flat Roof has paid the sum of $8,740.00 in certified funds to Complainants as restitution. It is further recommended that if Flat Roof provides acceptable written proof that it has fully accomplished the above described restitutionary action on or before the effective date of this Order, then the above provided License revocation shall not take place and, instead, License No. K-42.237681-D of Flat Roof shall be placed on disciplinary probation for a period of 180 days. It is further recommended, in addition to the above-provided penalties, if any, that Flat Roof 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 Flat Roof 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 Flat Roof’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Flat Roof, 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, October 24, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Administrative notice is taken of ProCap LLC’s prior license record as reflected on the Registrar of Contractors’ public website on October 24, 2012. Such prior license record reflects that of License No. K-42.270413-D of ProCap LLC is current with no open complaints. [2] See Exhibit A (ProCap LLC Roof Inspection Report). [3] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[4] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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