ALJDEC decisions subject to certification as final

2012A-3585-ROC · Registrar of Contractors · 2013-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 8, 2013, at 8:00 a.m. APPEARANCES: Nathan Cook (hereinafter “Complainant”) appeared on his own behalf. Rapp Roofing LLC (hereinafter “Rapp”) appeared through its Qualifying Party, David Glen Rapp. 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. Rapp is the holder of License No. K-42.261411-D issued by the Registrar of Contractors. 2. This is a residential matter where Rapp installed a new roof on Complainant’s residence. 3. Complainant was dissatisfied with Rapp’s workmanship and demanded that Rapp properly correct his roof. When Rapp failed to comply with his demand, Complainant filed a formal Complaint against Rapp with the Registrar of Contractors. 4. 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 August 6, 2012, directing Rapp to perform designated corrective work on Complainant’s roof. 5. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means:

1. Total roofing job poorly done: Job does not meet standards. 2. Edges of plywood around perimeter not cut even: Edges are not properly cut. 3. Drip edge 3” was installed requested 2” with 1 ½” shingle mold when 3” was removed fascia was damaged: 3” shingle mold was installed and removed leaving exposed nail holes and damaging fascia and no 1 ½” shingle mold installed. 4. All openings in roof poorly cut around and coated: Cuts around vents and roof penetrations are not properly cut. 5. Original shingle job uneven rows, contractor replaced top 6 rows of shingle: Several areas of shingles uneven and irregular and are not properly aliened. 6. Ridge vent installed not same installation on each end: Ridge caps are uneven and irregular and are not properly [aligned]. 7. Shingles bubble around solar tubes and other openings: Areas around vent caps and solar tubes are bubbling. 8. A/C not reinstalled properly, cooler same: Both are not properly secured and slipping down roof. 9. All duct work damaged coated and painted brown: Several pieces of duct are damaged and not properly flashed. 10. Flashing put on eaves instead of replacing as requested: Flashing used to cover water damage to eaves. 11. Shingle overhang about 1” in places and 0 in others: Shingles are not properly cut around perimeter. 12. Fascia was to be replaced on upper portion of roof: Water damaged fascia not replaced. 13. Electrical to A/C is broken: Utility box for electrical to A/C is not properly installed.

6. Inspector Nieves testified that he conducted an onsite pre-hearing inspection on February 4, 2013. Inspector Nieves stated that he inspected each of the 13 items on the Corrective Work Order and observed that Item Nos. 1, 2, 3, 4, 5, 6, 7, and 8 had not been fully corrected. Inspector Nieves opined that Rapp had failed to fully comply with the terms of the Corrective Work Order.[1] 7. Complainant’s wife, Tammy Irene Cook (hereinafter “Ms. Cook”), testified that Complainant paid Rapp in accordance with the parties’ construction agreement. Ms. Cook stated that Complainant had never received a final invoice from Rapp. Ms. Cook testified that Rapp gained approval for some plywood replacement from Complainant’s insurance company. Ms. Cook stated that Complainant did not want Rapp’s Qualifying Party, David Glen Rapp (hereinafter “Mr. Rapp”), present at the pre-hearing inspection because it was her only day off work and Complainant did not want anyone to disturb her that early in the day.[2] 8. Complainant testified that Rapp had failed to comply with the terms of the Corrective Work Order. Complainant stated that his roof is leaking and that he has suffered interior water damage in his residence. Complainant acknowledged that he requested Rapp to remove and replace the fascia board on his residence. Ms. Cook testified that Rapp made several attempts to correct Complainant’s roof.[3] 9. Mr. Rapp testified that he took the complaint very seriously and that the complaint was legitimate. Mr. Rapp stated that he had not given Complainant a final invoice or a warranty. Mr. Rapp testified that he thought the roof would be acceptable. Mr. Rapp stated that he was not aware that Complainant’s roof was leaking. Mr. Rapp testified that he was undergoing personal issues relating to his divorce and custody of his son during the construction project. Mr. Rapp acknowledged that “he failed a little bit in supervising his crew.” Mr. Rapp stated that someone asked him not to attend the pre-hearing inspection. Mr. Rapp testified that he does not believe that he can satisfy Complainant. Mr. Rapp stated that he did not disagree with Inspector Nieve’s testimony.[4]

10. Administrative notice is taken of Rapp’s prior license record as reflected on the Registrar of Contractors’ public website on February 25, 2013. Such prior license record reflects that License No. K-42.261411-D of Rapp is current. License No. K-42.261411-D of Rapp was suspended from 1/1/11-1/22/12 for non-renewal. 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. Rapp departed from or disregarded plans and specifications in its construction work on Complainant’s roof. Rapp failed to perform the roofing work on Complainant’s residence in a professional and workmanlike manner. Complainant’s roof leaks and Complainant has suffered interior water damage as a result of the leaking roof. This Tribunal concludes that Rapp violated the charged provisions of A.R.S. § 32-1154(A)(2)[5] and A.R.S. § 32-1154(A)(3),[6] namely, A.A.C. R4-9-108.[7] 4. Rapp failed to fully comply with the terms of the Corrective Work Order. This Tribunal concludes that Rapp violated the charged provision of A.R.S. § 32-1154(A)(23).[8] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-42.261411-D of Rapp shall be suspended until the Registrar of Contractors receives and accepts written proof that Rapp 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, Rapp fully accomplishes the above-described corrective action, 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 Rapp 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 Rapp 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 Rapp’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Rapp, 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 25, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/8/13 Hearing Record (hereinafter “H.R.”) at 14:05-27:33. [2] H.R. at 28:05-37:33. [3] H.R. at 37:45-56:08.. [4] H.R. at 56:19-1:15:36. [5] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [6] 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. [7] 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.

[8] 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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