ALJDEC decisions subject to certification as final

2012A-2798-ROC · Registrar of Contractors · 2013-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2013, at 1:00 p.m. APPEARANCES: Nathaniel Zuniga (hereinafter “Complainant”) appeared on his own behalf. Jim Moreno Jr. dba Trinity Company (hereinafter “Trinity”) appeared on his own behalf. 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. Trinity is the holder of License No. C-42.089768-R issued by the Registrar of Contractors. 2. This is a residential matter where Trinity performed roofing work on Complainant’s residence. 3. Complainant was dissatisfied with Trinity’s workmanship and with Trinity’s failure to return to Complainant’s residence and properly correct Trinity’s roofing work despite Complainant’s repeated requests that Trinity do so. 4. When Trinity failed to comply with Complainant’s requests, Complainant filed a formal Complaint against Trinity with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on July 17, 2012, directing Trinity to perform designated corrective work on Complainant’s roof. 6. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means:

1. Entire roofing paper has buckled and continues to get worse: Several areas do have buckling and bubbles, needs to be properly corrected. 3. High points of buckling are at the point of cracking: Several of the bubbling and buckling areas are at the joints of the decking, needs to be properly corrected.

No action is required on the following:

2. Next phase in construction is to coat the roof with roof coating but roof specialist refused to do work due to buckling. Statement by Complainant. 4. Emulsion coat was applied: Not specified in contract.

7. Inspector Nieves testified that he performed a prehearing inspection at Complainant’s residence on January 13, 2013. Inspector Nieves stated that there is further corrective action required on Complainant’s roof. Inspector Nieves opined that Trinity had failed to fully comply with the terms of the Corrective Work Order.[1] 8. Complainant testified that Trinity had failed to correct his roof as directed in the Corrective Work Order. Complainant stated that he had caused his roof to be inspected by an independent roofing consultant.[2] Complainant testified that the independent roofing consultant recommended that Trinity’s roofing work be removed and replaced.[3] 9. Jim Moreno, Jr. (hereinafter “Mr. Moreno”) testified that he is the qualifying party and sole owner of Trinity. Mr. Moreno stated that he observed the buckling on Complainant’s roof. Mr. Moreno stated that roof application over OSB decking had a tendency to buckle due to deterioration in the OSB decking. Mr. Moreno testified that he would have preferred to not cut the buckled areas of the roof on Complainant’s roof because buckled areas were part of the roof system. Mr. Moreno opined that any replacement of the buckled roofing material would have the same result due to the condition of the OSB decking on Complainant’s roof. Mr. Moreno testified that he had cut all of the buckled areas on Complainant’s roof and applied new roof coating over the cut areas of the roof.[4] 10. Administrative notice is taken of Trinity’s prior license record as reflected on the Registrar of Contractors’ public website on February 4, 2013. Such prior license record reflects that License No. C-42.089768-R of Trinity is current. 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. The roofing paper applied by Trinity has buckled and cracked. The buckled and cracked condition of the roofing paper does not comply with applicable industry and workmanship standards. This Tribunal concludes that Trinity violated the charged provision of A.R.S. § 32-1154(A)(3),[5] namely A.A.C. R4-9-108.[6] 4. Trinity failed to fully correct the unacceptable buckling and cracking problems on Complainant’s roof. Trinity failed to fully comply with the terms of the Corrective Work Order. This Tribunal concludes that Trinity violated the charged provision of A.R.S. § 32-1154(A)(23).[7] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-42.089768-R of Trinity shall be suspended until the Registrar of Contractors receives and accepts written proof that Trinity has fully complied with the terms of the written Corrective Work Order. It is further recommended that if Trinity fully accomplishes the above described corrective action on or before the effective date of this Order, then the above-provided License suspension shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Trinity pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Trinity 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 Trinity’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Trinity, 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, February 6, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/22/13 Hearing Record (hereinafter “H.R.”) at 15:20-18:40. [2] See Exhibit No. C-1 (Rick Hunsaker Professional Roof Consultant Inc. Report). [3] H.R. at 18:46-30:01. [4] H.R. at 30:26-44:15. [5] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [6] 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.

[7] 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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