ALJDEC decisions subject to certification as final

2012A-4196-ROC · Registrar of Contractors · 2013-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2013

APPEARANCES: Complainant appeared on his own behalf, accompanied by his brother David Young; Respondent was represented by LLC Member and Qualifying Party Adolfo Luna.

WITNESSES: Beau Cruz, ROC Inspector Kenneth Young David Young Adolfo Luna

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship with regard to roof replacement at Complainant’s elderly mother’s house. Respondent admits the workmanship issues and wants to fix them. Complainant does not want Respondent to fix them. The hearing focused on whether Respondent should make the needed corrections or whether they should be made by another contractor because Respondent is unable or unwilling to do so, or is incapable of doing so. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record, along with Complainant’s Exhibits A, B (photos that go with A), C (other photos), and D (packet of e- mails); and Respondent’s Exhibit 1. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations and recommending that another contractor make the corrections at Respondent’s expense. A civil penalty is also recommended for failure to comply with two Corrective Work Orders. FINDINGS OF FACT 1. Respondent is the holder of License No. KB-2.255384-D, a dual general residential and small commercial contracting license issued by the Registrar. Adolfo Luna is the Qualifying Party on the license. 2. In August 2012, Complainant hired Respondent to replace an aged roof on his mother’s house. The evidence shows that Respondent used a roofing subcontractor named Superior Foam Roofing, LLC. During the work, a significant rainstorm occurred while the roof was not covered. This caused damage both inside and outside of the home. 3. After Complainant filed an ROC complaint about various aspects of Respondent’s work, ROC Inspector Beau Cruz issued two Corrective Work Orders (“CWOs”). The first is dated September 21, 2012, and was issued after Inspector Cruz’ initial jobsite inspection on September 14, 2012. That CWO ordered correction of eight out of the eleven complaint items (recitation of complaint items is in bold type; the inspector’s conclusions and orders are in regular type; ALJ’s additions are in brackets): Contractor is to correct the following by the appropriate means and is obtain the necessary permits and comply with all inspections and corrections required by the City of Phoenix

Complaint 1) Parapet wall, once repaired were [sic] to have been stucco on 6 inches outside of wall over top 8 inches from deck with Z- bar termination. That is what was discussed verbally and agreed upon: No Z-bar flashing noted on bottom of parapet walls. General [contractor] did agree at the jobsite that was [sic] verbally agreed upon with complainant.

Complaint 2) Water on front patio appear [sic] to be penetrating the roofing and causing damage. Front patio gathers water at the base of wall and can be viewed when rainy conditions occur: It is this inspector [sic] opinion that the bottom of the stucco walls are stained on the bottom due to stucco being in contact with patio deck, although due to the visual inspection on how the tile courses were laid and the issues with loose tiles, contractor is to ensure that patio roof is installed according to all applicable and current standards.

Complaint 3) Water on back patio appears to be penetrating roofing and is soaking wood during rainy conditions: Although no water staining was noted at the time of the jobsite inspection due to patio undersides having been painted prior to jobsite inspection, it should be noted that this inspector did observed that contractor improperly corrected by installing 2" x 5" galvanized “L” flashing on the exterior of the stucco above the roof tiles and caulking along the top of same in an effort to correct any leaking in this area. Contractor is to ensure that patio roof is installed according to all applicable and current standards.

Complaint 4) Foam does not appear to have enough elastomeric applied and in some locations, foam is completely exposed: Noted several areas of missing elastomeric coating on the east side on the roof. Contractor did state at the jobsite inspection, that he would be reapplying elastomeric coating over the entire roof.

Complaint 5) Tile over both front and back patio's [sic] are misaligned and is believed [sic] could contribute to water penetration at some point: Noted misaligned vertical tiles [sic] rows on the front and back patio roofs as well as loose tiles on front patio roof. Contractor is to ensure that patio roofs are installed according to all applicable and current standards. . Complaint 6) Flashing over tile front porch and tiled back patio appears to not be the proper material and should be verified to determine if this is substandard construction or repair. Flashing where patio or porch meets the house needs to be verified to be of proper material: Metal flashing on front patio is of the proper material (galvanized sheet metal flashing). It should be noted that this inspector did observed [sic] that contractor improperly corrected by installing 2" x 5" galvanized “L” flashing on the exterior of the stucco above the roof tiles and caulking along the top of same in an effort to correct any leaking in this area. Noted voids in the stucco between the patio roofs and the sheathing, with no evidence of proper flashing application and termination, such as kick out flashing to divert water away from these areas. Contractor is to ensure that patio roof is installed according to all applicable and current standards.

Addenda

Complaint 10) Weep screed on bottom of stucco parapet wall for the roof compromised with elastomeric coating: Weep screed vent holes on the bottom of stucco parapet walls for the roof have been partially sealed with elastomeric coating. Roofing subcontractor stated at the jobsite inspection that will correct.

Complaint 11) Contractor did not replace the water damaged areas of roof sheathing before res-sheathing [sic] roof with OSB roof decking: Noted deteriorated section of old roof sheathing that was covered with new OSB roof sheathing in the rear bedroom to the left of the bathroom, master bathroom/bedroom closet area, above front entry and front bedroom at the front left area of the roof near the soffit area. Due to the numerous areas of old sheathing decay, contractor is to ensure that roof application is installed to all current and applicable standards and ensure [sic] obtain all permits and inspections as are required by the City of Phoenix.

No action required of the following

Complaint 7) Foam appears to be uneven in many areas and shows decking seams throughout the entire deck of the roof: It is this inspector’s opinion, that the entire surface of the foam roof appears to have been installed in a workmanlike manner, with minimal unevenness. It is normal and not uncommon for seams due to roof crickets or hip roof crickets to be visible.

Complaint 8) Contract calls for 2 inches of foam on the entire roof decking and thicker as necessary for the turn up from to parapet walls. This needs to be verified: It is this inspectors opinion, that roof was applied in a professional and workmanlike manner. Complainant failed to provide evidence to suggest that contractor did not cover the roof as per contract.

Complaint 9) There is a hole in the foam roofing, 1 foot to 3 feet to the east of skylight over the garage area: Noted a hole or breach in the elastomeric coating about 3 ½ feet from the S/E side of roof tube light. It should be noted, that roof subcontractor corrected at the jobsite

The CWO gave Respondent 15 days to make the corrections. 4. At about the same time as the first CWO, Complainant obtained a roof inspection from Tony Hecht of Tony Hecht Enterprises, Inc. Hecht inspected the condition of he roof and issued a written report that has been admitted as Exhibit A. He characterized the workmanship as “amateurish, at best” and made specific findings and conclusions about the workmanship. However, there are several problems with Exhibit A that keep it from being a reliable source of evidence in this matter. First, it is hearsay whose reliability is difficult to assess because there is no information in the evidence about the qualifications and background of Hecht. Second, Hecht did not appear and testify as to the validity and veracity of his report. And thirdly, it does not appear that Exhibit A was ever disclosed to Inspector Cruz or Respondent before the hearing. For these reasons, the Administrative Law Judge does not give much weight to Exhibit A. 5. Shortly after the first CWO was issued and the Hecht inspection, Complainant filed an addendum to his complaint, adding more workmanship items. The addendum was prompted by the results of an inspection from the City of Phoenix. Inspector Cruz performed a second inspection on October 19, 2012, and issued a second CWO on October 23, 2012: Addenda Corrective Work Order #1 Contractor is to correct the following by the appropriate means and all applicable standards, and obtain all necessary inspections as are required

Complaint 1) Many of the nails were shiners as he [City Inspector] put it, meaning that enough nails may or may have not made contact with the roofing substructure or roof framing to secure the new decking properly. He indicated there were shiners all over the underside of the deck, from end to end in the house. Removal of the foam to inspect the decking and the nailing is required and would be forwarded to his supervisor for further examination/agreement of his findings or approval: Numerous shiners (exposed/missed nails) noted in the exposed attic area. Contractor is to ensure that proper nailing schedule is affected, to ensure that roof decking/sheathing is properly secured to roof members.

Complaint 2) There were two broken trusses, one in the living room, and the other in the front bedroom. Those need to be fixed to pass inspection: Broken/split trusses (roof members) in the following locations: 1. Living Room – 4th 2x4 jack by front N/E corner 2. Family Room – 5th 2x4 jack by rear S/E corner 3. Center Bedroom – 2 2x4 jacks by N/W corner

No action required of the following

Complaint 3) He [City Inspector] did not have an issue with the decking over the existing roof; he felt that the decking over the existing decking was fine, but items 1 and 2 above need to be addressed: This is viewed as additional information from complainant to emphasize opinion of the city inspector.

Respondent again had 15 days to make those corrections. 6. Inspector Cruz performed a pre-hearing inspection on March 5, 2013. At hearing, he testified that the decking (sheathing) and roof trusses had been repaired by others at Complainant’s request. 7. Complainant verified at hearing that other contractors have completed item 4 from the 9/21/12 CWO (missing elastomeric coating) and item 2 from the 10/23/12 CWO (roof trusses). Complainant did not have invoices available at the hearing to request restitution for those amounts. 8. At hearing, Respondent’s representative candidly admitted that he was “in a little over my head” with this job. He wants to fix the items and feels that he can do so. 9. Exhibit D is a series of e-mails between the parties concerning how to address the items in the CWOs that were issued by the ROC. The parties communicated with each other in late September 2012 and October 2012. The issue of whether to get a permit became an important issue. Respondent represented that the city was not going to require a permit at that point in the project and that getting one would delay the repairs. Complainant wanted Respondent to get a permit. In the meantime, Respondent asked Complainant to request an extension from the ROC, which Complainant was willing to do, but was upset that Respondent had waited until the end of the compliance period to request it. Complainant also wanted to wait until the city had inspected the roof before work started. In the end, Complainant told Respondent on October 8, 2012, not to plan doing any more work at the house because the time had expired. Based on the e-mail exchange, it appears that Complainant decided not to request an extension because of his belief that Respondent had had plenty of time to do the work before asking for an extension. However, it was actually the dispute over the permit that caused the delay. Eventually, Complainant pulled a permit himself. 10. When the 10/23/13 CWO was issued, Respondent requested permission from Complainant to go to the house and work on both CWOs. Complainant had lost confidence in Respondent, but was willing to consider giving Respondent access after Respondent detailed his plans for doing the corrective work and listed the materials Respondent was going to use. He told Respondent this on October 31, 2012, and November 2, 2012. There is no evidence that Respondent responded to those requests until late January 2013.[1] At that point, a Citation and Complaint had been issued by the ROC and Complainant did not want Respondent back on the job. 11. The Administrative Law Judge finds that Respondent did not comply with the CWOs. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainants has 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 shows that Respondent has not met workmanship standards and did not fully comply with the CWOs. 3. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on March 26, 2013. That prior record shows that Respondent has held the license since May 2009 and has not had any disciplinary actions. This is a good record. 4. Several items in the two CWOs need to be corrected. This includes 9/21/12 CWO items 1, 2, 3, 5, 6, and 10, and 10/23/12 CWO item 1. The appropriate sanction in this matter is to require Respondent to pay for another contractor to do the corrective work. If Respondent does not do so in a timely manner, the license should be suspended. In addition, a civil penalty is warranted. 5. The procedure for getting the corrective work done should require Complainant to obtain at least 2 and no more than 3 bids from properly licensed contractors to performed the remaining corrective work. Respondent should then pay Complainant the amount of the lowest bid. Complainant will then be free to hire any contractor he wishes to perform the work. RECOMMENDED ORDER IT IS RECOMMENDED that License No. KB-2.255384-D, held by Grand Construction LLC be suspended beginning the effective date of the Registrar’s Order unless the Registrar receives, and accepts, written proof that Respondent has complied with the requirements stated in Conclusions of Law 4 and 5 above. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and Case No. 2012-4196 shall be closed. IT IS FURTHER RECOMMENDED that, along with the provisional suspension above, Grand Construction LLC pay a civil penalty of $500.00 ($250.00 for each CWO) to the ROC pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the ROC Order entered in this matter, shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, March 26, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] 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