ALJDEC decisions subject to certification as final

2012A-3694-ROC · Registrar of Contractors · 2013-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2013

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by corporate President and Qualifying Party Mark McGehee and by Secretary/Treasurer Analisa McGehee.

WITNESSES: Jim Dimond, ROC Inspector David Stephens Mark McGehee Jeremy McGehee, Superintendent for Respondent

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to roofing work done by Respondent at Complainant’s house.[1] Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (“Registrar” or “ROC”) into the record. The parties also presented photographic evidence: Complainant’s packet of photographs is marked Exhibit A and includes 18 digital photographs printed onto paper; Respondent submitted the same photograph in three forms, two in traditional photographic form and one printed onto paper (these are submitted in a plastic cover sheet). Those Exhibits were admitted into evidence. In addition to the photographic evidence, Complainant created a video of himself performing a water test of one area on his roof on January 23, 2013. The video was made on his iPhone and is approximately one-and-a-half to two minutes long.[2] Complainant was allowed to play the video at hearing.[3] Upon reflection, the Administrative Law Judge finds that the video is unreliable and excludes it from evidence for the following reasons: 1) Complainant used a garden hose and put the water stream point blank onto the area in question. This does not simulate a rain event, even a hard rain event, and there is no evidence supporting that the method Complainant used is a proper and fair method of measuring the roof against industry standards. 2) There is no indication of how long the water had been running before the video begins. 3) Complainant points out in the video that no other areas of the roof are leaking. But, it is clear that there is no water running on the other areas of the roof, so that observation is pointless. Because the video evidence is found to be unreliable, it is not admitted into the record. The witnesses listed above testified at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of License No. C-42.119497-R issued by the ROC. That license is a specialty residential contracting license that authorizes Respondent to install and repair roofing materials for residential properties. The Qualifying Party on the license is Mark McGehee. 2. In August 2010, Complainant hired Respondent to install new shingles over existing shingles on Complainant’s roof. Respondent performed the work. In July 2012, Complainant filed a complaint with the ROC against Respondent, claiming that the roof had failed at a roof penetration for the A/C unit’s condensate line and had allowed water to leak into the attic and damage the ceiling inside the home directly under the penetration. 3. In August 2012, ROC Inspector Jim Dimond inspected the area in question and issued a Corrective Work Order (“CWO”) dated August 27, 2012, that made the following findings (restated complaint in italics, findings in bold): Item 1- New asphalt roof installed over existing failed at roof penetration. Water entered into roof and caused extensive damage (area above northwest br #3). Contractor is to correct the condition in an appropriate manner including any corollary damage.

Item 2- Water damage to ceiling drywall, paint, and floor coverings. Contractor is to correct the condition in an appropriate manner.

Item 3- Contractor contacted by phone to inspect water leak. They caulked the penetration (without calling me or discussing it with me). Contractors are encouraged to remedy items of their responsibility prior to ROC inspections. The ROC however, does not have jurisdiction regarding phone calls.

Item 4- Contractor denies responsibility for any damage. The contractor is being sent this Corrective Work Order.

Item 5- Have had roof and damage inspected by another licensed roofing contractor and 2 Handymen- all state that roof failed at penetration piping allowing water to leak into the home. The seal at all of the roof penetrations have sealed and this is a 2 year workmanship item. Contractor is to correct the condition in an appropriate manner.

Respondent objected to the CWO. Inspector Dimond had not performed a water test and decided that he should. Therefore, another inspection was performed on September 13, 2012, this time with a water test by Inspector Dimond. This resulted in another CWO, dated September 17, 2012, that made the following findings: THIS CORRECTIVE WORK ORDER (CWO) AMENDS THE CWO ISSUED ON 8/27/2012. THE ITEMS LISTED BELOW ARE THE ONLY AMENDED ITEMS AND THE REMAINING 3 ITEMS ARE UNAFFECTED BY THIS DIRECTIVE.

Item 1- New asphalt roof installed over existing failed at roof penetration. Water entered into roof and caused extensive damage (area above northwest br #3). A subsequent inspection and water test was conducted on 9/13/12. There is still a leak. The leak is possibly at the A/C whip flashing or a cut in a shingle just below the whip flashing. An A/C contractor has performed work in this area at least twice during the complaint process. It is unknown who or when the cut in the shingle occurred. The Inspector can no longer determine that this leak is in fact the responsibility of the respondent.

Item 2- Water damage to ceiling drywall, paint and floor coverings. Please refer to item 1.

So, the final result was that Respondent was not ordered to make corrections to the water damage because Inspector Dimond could not determine that the leak is the responsibility of Respondent. 4. At hearing, Jeremy McGehee testified for Respondent. He is the son of Respondent’s principals and a Superintendent for the company. The Administrative Law Judge finds him to be a credible witness. He testified that he was called out to Complainant’s house to look at the problem in July 2012. He found that the condensate drip line in the attic was leaking from a 90-degree elbow. That elbow is located directly below the penetration at issue and joins the vertical line coming through the roof and the horizontal line that takes the condensate over to the outside wall for discharge on the outside. He observed water dripping from the elbow and felt the vertical line above the elbow with his hand; it was dry. The tenant in the house told him that it had not rained in over a week. He also went up on the roof and observed that the “blow out” part of the condensate line, used to clean out the pipe if clogged, was filled to the top with water. This means that the condensate line was plugged and had backed up with water, making it the likely source of the water damage. 5. Complainant admitted that the condensate line was clogged and had to be blown out to clear it. 6. The Administrative Law Judge finds Jeremy McGehee’s testimony to be credible and to cast significant doubt on Complainant’s position that Complainant’s roof penetration was the source of the water damage to the ceiling. 7. The evidence is not sufficient to show that Respondent is responsible for the water damage to Complainant’s ceiling. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence does not show that Respondent has violated those provisions. 3. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2012-3694 against Respondent Mark McGehee Roofing Inc. 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, February 13, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Complainant owns the house but rents it to a tenant. He does not live there. [2] The video file was sent to the OAH electronically but was too large and had to be broken into several files. This makes viewing the video difficult because the files are not in sequence. [3] But not in sequence due to the multiple files. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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