ALJDEC decisions subject to certification as final

2012A-3356-ROC · Registrar of Contractors · 2013-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2013, at 8:00 a.m. APPEARANCES: Tonya A. Neibarger (hereinafter “Complainant”) appeared on her own behalf. R C R Contracting Inc dba R C R Roofing (hereinafter “RCR”) appeared through its general manager, Pius Paul Coles. 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 RCR is the holder of License No. K-42.269324-D issued by the Registrar of Contractors. This is a residential matter where the roof on Complainant’s house incurred storm damage and her insurance company agreed to replace the damaged roof. On or about December 13, 2010, Complainant contracted with RCR for the installation of a new roof. RCR completed its work on Complainant’s roof on or about January 26, 2011. Complainant testified that she noticed that the roof was “waving” within a month of the completion of the new roof. Complainant stated that the new roof failed during a windstorm on or about June 15, 2012. Complainant testified that she had difficulty contacting RCR because it was now doing business as Guardian Exteriors. Complainant testified that she was finally able to contact RCR and that RCR sent a representative to inspect the roof. Complainant testified that RCR’s representative indicated that he would take his observations back to the office. Complainant stated that RCR then contacted her and offered to install more nails in her roof. Complainant testified that she informed RCR that she wanted a completely new roof. Complainant stated that RCR informed her that she should file another claim with her insurance company. Complainant then filed a formal Complaint against RCR with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Jim Dimond (hereinafter “Inspector Dimond”), conducted an onsite inspection. Inspector Dimond issued a written Corrective Work Order on August 13, 2012, directing RCR to perform designated corrective work on Complainant’s roof. The Corrective Work Order provided, in pertinent part, as follows: Item 1- (Condensed) Throughout the entire roof there are random nails, some of which are not penetrating the material causing a lot of areas to be lifted w/minimal pull.

Contractor is to correct the condition in accordance with manufacturer specifications in an appropriate manner. Any fasteners protruding through the Substrate at open eaves shall be nipped to 1/8” or less.

Complainant testified that none of her neighbors suffered any roof damage during the June 15, 2012 windstorm. Complainant stated that her roof was not properly secured and failed. Complainant stated that RCR had not performed any corrective work on her roof. Complainant testified that RCR had not asked her for access to her residence to perform the corrective work directed in the Corrective Work Order. Complainant’s testimony is found to be credible. Respondent’s general manager, Pius Paul Coles (hereinafter “Mr. Coles”), testified that RCR had installed a GAF-L 30-year roof with an 80 mile-per- hour rating on Complainant’s house. Mr. Coles stated that Complainant’s new roof had been damaged in a “micro-burst” and that RCR was not responsible for the damage to the roof. Mr. Coles opined that Complainant should file a claim with her insurance company. Mr. Coles acknowledged that he did not know how fast the wind was when Complainant’s roof was damaged. Mr. Coles testified that Complainant contacted RCR about the problem with her roof and that RCR sent a representative to inspect Complainant’s roof on June 21, 2012. Mr. Coles stated that as a result of the onsite inspection, RCR offered to replace some blown-off shingles on Complainant’s roof. Mr. Coles testified that Complainant rejected RCR’s offer and insisted on a completely new roof. Mr. Coles stated that the replacement of the roof was not required to correct the problems with the Complainant’s roof. Mr. Coles acknowledged that RCR was now doing business as Guardian Exteriors. Mr. Coles testified that RCR was a national corporation doing business in several states and that the new name was more appropriate for the corporation’s national business operations. Mr. Coles testified that RCR had changed its address and that the Registrar of Contractors had sent the Corrective Work Order to the wrong address. Mr. Coles stated that RCR was not aware of the Corrective Work Order until Inspector Dimond contacted him on the telephone in October 2012. Administrative notice is taken of RCR’s prior license record as reflected on the Registrar of Contractors’ public website on June 13, 2013. Such prior license record reflects that License No. K-42.269324-D of RCR is current. CONCLUSIONS OF LAW 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. 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). The assigned Registrar Inspector performed an onsite inspection at Complainant’s residence and found that the roof was not properly nailed and required appropriate corrective action. A Corrective Work Order was issued by the Registrar of Contractors directing RCR to “correct the condition in accordance with manufacturer specifications in an appropriate manner.” RCR failed to comply with the terms of the Corrective Work Order. Complainant established that her roof failed because it was not properly installed by RCR. This Tribunal concludes that RCR violated the charged provisions of A.R.S. § 32-1154(A)(3),[1] namely, A.A.C. R4-9-108,[2] and A.R.S. § 32-1154(A)(23).[3] Complainant may not dictate RCR’s repair methods because as a licensed contractor, RCR is presumed to have the expertise to accomplish repairs according to the Registrar’s standards. If RCR fails to perform repairs to Complainant’s roof in a professional and workmanlike manner and in compliance with the Registrar’s standards, Complainant may request a compliance hearing. If Complainant does not allow RCR access to her residence to attempt correction, she will loose her right to further relief in this forum. RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-42.269324-D of RCR shall be suspended until the Registrar of Contractors receives and accepts written proof that RCR has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if on or before the effective date of this Order, RCR fully accomplishes the above described corrective action, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that RCR 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 RCR 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 RCR’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with RCR, 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, June 14, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 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. [2] 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.

[3] 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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