ALJDEC decisions subject to certification as final

2012A-278-ROC · Registrar of Contractors · 2012-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 2012, at 1:00 p.m. APPEARANCES: Complainant Martha Barr appeared on her own behalf; Respondent Kachina Roofing Inc. appeared through Tracy Nolan Iungerman, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. C-42.152027-R to Kachina Roofing Inc. (“Respondent”). 2. Martha Barr (“Complainant”) filed a complaint with the Registrar against Respondent. Complainant alleged that Respondent failed to remove roofing materials from around the air conditioning unit at a condominium that she owned at 6027 North 31st Avenue in Phoenix, restricting air flow to the unit and causing the motor to fail. 3. Complainant attached to her complaint a copy of an invoice from Feel Better Instantly Inc.[1] in the amount of $501.00 dated September 4, 2011, that included the handwritten notation, “In my opinion the motor failed because the roofers had stacked all the screening for the pigeons on top of the motor & fan discharge totally restricting the flow of air.” 4. The Registrar issued a Citation and Complaint against Respondent charging a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 6. A hearing was held on July 12, 2012. Complainant submitted one exhibit and presented the testimony of James Moyemont, Feel Better Instantly Inc.’s qualifying party and officer, who wrote the September 4, 2011 invoice. Respondent presented the testimony of two witnesses: (1) Tracy Nolan Iungerman, Respondent’s qualifying party and officer, and (2) Scott Sullivan, the superintendent for Johnson Contracting LLC,[2] the general contractor on the project that included installing new roofs on the buildings in the complex in which Complainant’s condominium is located. Hearing Evidence 7. Complainant’s condominium is a rental. Mr. Moyemont testified that Feel Better Instantly Inc. was hired by United Metro Property, the leasing agent for certain rental properties, including Complainant’s condominium. Complainant has no first-hand knowledge of the facts alleged in her complaint. 8. Mr. Moyemont testified that the air conditioner was mounted on the roof of Complainant’s condominium. Mr. Moyemont testified that when he replaced the air conditioner’s motor, he had to remove approximately 8 rolls of chicken wire that were stacked on top of the motor discharge. 9. Mr. Moyemont testified that chicken wire is frequently used around the bottom of roof-mounted air conditioning units to prevent pigeons from building nests underneath the units. Mr. Moyemont testified that since the roof on the condominium building looked new, he assumed that the roofer had removed the wire and stacked it on the air conditioner to construct the new roof, then failed to remove the wire. 10. Mr. Moyemont testified that because motors in air conditioners require unimpeded air flow, he assumed that the chicken wire caused the motor in Complainant’s air conditioner to fail. Mr. Moyemont acknowledged, however, that air conditioners frequently fail in the Arizona heat. 11. Mr. Iungerman testified that between June 2011, and September 2011, Respondent replaced hail-damaged roofs on the buildings in the condominium complex pursuant to its subcontract with Johnson Contracting LLC. Mr. Iungerman testified that Respondent did not tear off any pigeon screens, although it did tear down and dispose of a large trap on Building 2 in the complex. Mr. Iungerman testified that Complainant’s condominium was located in Building 4. 12. Mr. Sullivan testified that he inspected Respondent’s work before Johnson Contracting LLC made any installment payments to Respondent for its work. Mr. Sullivan testified that Respondent was paid in full for the job. Mr. Sullivan testified that Respondent did not leave any debris on the roofs of any of the buildings in the condominium complex. 13. Mr. Sullivan testified that in July 2011, Respondent completed and he inspected the new roof on Building 4, in which Complainant’s condominium is located. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged contracting statute.[3] 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 3. Many persons, including owners, tenants, rental agents, and contractors, had access to the roof of the building in which Complainant’s condominium is located between July 2011, when Respondent constructed the new roof, and September 2011, when Mr. Moyemont saw the chicken wire. No direct evidence ties Respondent to the chicken wire. 4. Mr. Moyemont candidly acknowledged that air conditioners frequently fail in Arizona, even when air flow is unimpeded. No direct evidence ties the chicken wire to the failure of Complainant’s air conditioner’s motor. 5. Therefore, Complainant has not borne her burden to establish that Respondent constructed the new roof on the building in which her condominium is located in a manner that was unprofessional or not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-103. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant Martha Barr’s complaint against Respondent Kachina Roofing Inc.’s License No. C-42.152027-R in Case No. 2012-278 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, July 25, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] According to the Registrar’s public website, Feel Better Instantly Inc. holds License No. C39R.165664-R.

[2] According to the Registrar’s public website, Johnson Contracting LLC DBA: J and M Restoration holds License Nos. B-2.267278-C and B-3.222818-R. [3] See A.R.S. §§ 32-1154 to 32-1169. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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