ALJDEC decisions subject to certification as final

2012A-3146-ROC · Registrar of Contractors · 2012-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2012, at 1:00 p.m. APPEARANCES: Marissa McClure (hereinafter “Complainant”) appeared on her own behalf. John Gregory Baskin dba Foam One (hereinafter “Foam One”) 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. Foam One is the holder of License No. C-42R.111800-R issued by the Registrar of Contractors. 2. This is a residential matter where Foam One performed roofing work on a residence purchased by Complainant. The roof on her new residence leaked and Complainant notified Foam One of the problem. Foam One repeatedly failed to return to Complainant’s residence to correct the leaking roof. Complainant was dissatisfied with Foam One’s workmanship and filed a formal Complaint against Foam One with the Registrar of Contractors. 3. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Richard Allen (hereinafter “Inspector Allen”), conducted an onsite inspection at Complainant’s residence on July 12, 2012. 4. Inspector Allen testified that he observed unacceptable ponding on Complainant’s roof in excess of ½” that required appropriate correction by Foam One. Inspector Allen stated that no Corrective Work Order was issued because Foam One’s License No. C42R.111800-R had been revoked by the Registrar of Contractors on January 25, 2011. Inspector Allen testified that there was no pre-hearing inspection because no corrective work had been performed on Complainant’s roof.[1] 5. Inspector Allen testified that he observed numerous areas of unsatisfactory work completed by Foam One on Complainant’s roof that required appropriate corrective action, including excessive ponding, stains on the flashing, excessive foam over-spray, and gutters that were removed and not replaced. Inspector Allen stated that the interior of Complainant’s residence had been repainted prior to his onsite inspection and that he was unable to verify Complainant’s claim of interior water damage.[2] 6. Complainant testified that Foam One had contracted to replace the roof on her residence. Complainant stated that her roof leaks and that the interior of her home has suffered water damage as a result of the leaking roof. Complainant testified that she believed that the roof on her residence should be removed and replaced.[3] 7. Complainant submitted a Pride Property Inspections Report stating that a private home inspector had performed an onsite inspection on Complainant’s roof and that the home inspector observed and documented excessive ponding, deteriorated foam roofing material, excessive cracking, soft/spongy areas on the roof, and parapet walls in need of repair.[4] 8. Complainant testified that she repeatedly contacted Foam One and requested corrective action on her roof and that Foam One responded with reasons why it was unavailable to return to her residence to perform needed corrective work on her roof. Complainant stated that she was unable to sell her home because of the problems with her roof. Complainant testified that she was no longer willing to allow Foam One access to her residence to perform corrective action on her roof because Foam One’s contractor’s license had been revoked.[5] 9. Administrative notice is taken of Foam One’s prior license record as reflected on the Registrar of Contractors’ public website on December 19, 2012. Such prior license record reflects that License No. C42R.111800-R of Foam One was revoked on January 25, 2011. 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. Foam One abandoned the construction project and failed to return to Complainant’s residence and properly correct its poor workmanship on Complainant’s roof, despite repeated opportunities to do so. This Tribunal concludes that Foam One violated the charged provision of A.R.S. § 32-1154(A)(1).[6] 4. Foam One’s roofing work on Complainant’s residence evidences unacceptable ponding, excessive foam overspray, material deterioration, and excessive cracking, and the roof leaks, allowing moisture into the interior of Complainant’s residence. This Tribunal concludes that Foam One violated the charged provision of A.R.S. § 32-1154(A)(3),[7] namely, A.A.C. R4-9-108.[8] RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 42R.111800-R of Foam One shall be revoked on the effective date of this Order.

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, December 20, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 12/14/12 Hearing Record (hereinafter “H.R.”) at 4:45-6:15. [2] H.R. at 6:16-8:23. [3] H.R. at 8:36-10:29.. [4] See Exhibit C-2 (Pride Property Inspections Roof Report prepared by Mark Timpani). [5] H.R. at 10:30-16:20. [6] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [7] 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. [8] 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.

-----------------------

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