ALJDEC decisions subject to certification as final

2012A-4255-ROC · Registrar of Contractors · 2013-04-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2013, at 8:00 a.m. APPEARANCES: Sherlyn L. Ricketts (hereinafter “Complainant”) appeared on her own behalf. West Coast Roofing LLC (hereinafter “West Coast”) appeared through its attorney, Corey B. Larson, Esq., Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. 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. West Coast is the holder of License No. K-42.235353-D issued by the Registrar of Contractors. 2. This is a residential matter where West Coast performed roofing work on Complainant’s rental property located at 414 S. Abrego, Green Valley, Arizona. 3. Complainant was dissatisfied with West Coast’s workmanship and filed a formal Complaint against West Coast with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on September 18, 2012, directing West Coast to perform designated corrective work on Complainant’s rental property. 5. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means:

1. Roof – [s]oft sheeting is rippled along many parapets: Several areas are soft and spongy, per the Workmanship Standards page 24 #10. Bubbles or roof-ply separations, Contractor should make proper repairs as needed.

2. Roof – many penetrations were not sealed: Penetrations have been repaired with roof cement but several have been recoated with [elastomeric].

3. Roof – roof membrane not hot mopped only torched at the seams and is still soft: Areas at parapets and up the parapets are not tight to the surface, per the Workmanship Standards page 24 #10. Bubbles or roof-ply separations, Contractor should make proper repairs as needed.

4. Roofing membrane is rippled along the parapet wall in many areas and on the flat roof areas too: Areas at parapets and up the parapets are not tight to the surface, per the Workmanship Standards page 24 #10. Bubbles or roof-ply separations, Contractor should make proper repairs as needed.

5. Roofing membrane is loose at least two inches from the parapet wall at rippled areas: Areas at parapets and up the parapets are not tight to the surface, per the Workmanship Standards page 24 #10. Bubbles or roof-ply separations. Contractor should make proper repairs as needed.

8. On top of parapet wall and at corners and seams of parapet roofers threw the granulated roofing material on it to stick: Granulated material is not evenly applied and adhering to roofing cement.

9. In some places it is two inches thick and still not dried after five days: Roofing mastic is thick in some areas and granulated material is not evenly applied and adhering to roofing mastic. 11. Granulated roof material poured out of the scuppers after rains: material has washed away, material is not evenly applied and adhering to surface.

15. Billed for plywood-used particle board: OSB was used, Contract specifies plywood.

No action is required on the following:

6. Roofing membrane is of rolled roofing material not three ply built-up: Roofing material has a granulated surface. I could not determine if roof is not 3-ply built up.

7. Roof sheeting is soft and still rotted in many areas and roofing company roofed over it: Several areas are soft, spongy and have visible water damage. I could not determine the contract amount of decking to be replaced.

10. Scupper flashing and vent flashing installed on top of roofing membrane and [elastomeric] coating applied over.

12. After roof installed and work was done leaks came into the interior of the house at the kitchen and bedroom: Leaks have been repaired by the [C]omplainant.

13. At least fifteen to twenty gallons in each of these rooms: Statement by [C]omplainant.

14. Debris from sheeting replacement covered the kitchen, bathroom, tub, and the bedroom on non-damaged tie, nails[,] wood roofing material: Corrected by the [R]espondent prior to jobsite.

16. Billed for 10 sheets plywood-used only 8 of particle board: I could not determine the contracted amount of decking to be replaced.

6. Inspector Nieves testified that he contacted both parties on March 11, 2013. Inspector Nieves stated that Complainant informed him that no corrective work had been performed by West Coast. Inspector Nieves testified that West Coast’s representative, Ryan McDaniel, informed him that West Coast had not completed its corrective work on Complainant’s property.[1] 7. Inspector Nieves testified that he did not see any roof ply separations on Complainant’s roof. Inspector Nieves stated that there appeared to be waves in the roofing material on the vertical surfaces of the parapets. Inspector Nieves testified the roof system installed by West Coast was an SBS three-ply roof system.[2] Inspector Nieves stated that the parapets are made of concrete block and that the roof decking is made of wood. Inspector Nieves testified that there would be expansion and contraction of the two different construction materials. Inspector Nieves stated that any repair of the waviness of the SBS roofing system at the parapet walls would involve cutting into the roofing system. Inspector Nieves testified that Complainant’s roof would not leak but was not aesthetically pleasing. Inspector Nieves acknowledged that the SBS roofing system installed by West Coast was functioning as a roof system.[3] 8. Inspector Nieves testified that an SBS roof system does not require “hot mopping.” Inspector Nieves stated that he observed no indication that there was any roof leaking around the roof penetrations on the roof at the time of his onsite inspection. Inspector Nieves stated that the Complainant had a representative on the roof during the onsite inspection. Inspector Nieves testified that he observed the homeowner’s representative cut into the roof during the onsite inspection.[4] 9. Inspector Nieves testified that Complainant’s representative, Tony Flynn (hereinafter “Mr. Flynn”), cut into to the roofing system to demonstrate that the substrate could be torn easily. Inspector Nieves stated that Mr. Flynn was unable to tear the roofing material on the roof substrate. Inspector Nieves testified that he observed that the roof penetration had been sealed by the SBS roof system installed by West Coast. Inspector Nieves acknowledged that the SBS material had to be installed in such a manner as to allow for expansion and contraction.[5] 10. Inspector Nieves acknowledged that West Coast had informed him that it needed to return to Complainant’s residence to apply additional granulated material to areas where the roof had been “torched-down.” Inspector Nieves stated that West Coast informed him that West Coast had not applied the additional granulated material because Complainant had denied access to West Coast.[6] 11. Inspector Nieves testified that Complainant was dissatisfied with West Coast’s use of OSB board[7] instead of plywood for the new roof decking. Inspector Nieves stated that use of OSB board for roof decking is within all applicable code requirements. Inspector Nieves testified that OSB board is the standard in the industry for structural roof decking. Inspector Nieves stated that OSB board is more resistant to warping than plywood. Inspector Nieves testified that he included the replacement of OSB board with plywood because the term plywood was used in the parties’ written contract.[8] 12. Inspector Nieves testified that both parties informed him that there had been a roof leak after West Coast had completed its work on Complainant’s roof. Inspector Nieves stated that the parties told him that the leak was located near one of the scuppers. Inspector Nieves testified that there was no dispute that West Coast repaired the leak near the scupper and then water-tested the roof repair. 13. Inspector Nieves stated that Complainant had denied access because Complainant was waiting for the hearing. Inspector Nieves testified that he had received several letters from West Coast alleging that Complainant had denied West Coast access to Complainant’s roof to perform the corrective work directed in the Corrective Work Order. Inspector Nieves testified that he believed that Complainant’s roof could be properly corrected and that the roof did not require replacement.[9] 14. Inspector Nieves testified that West Coast had failed to properly display its contractor’s license numbers on all of its written communications. 15. Inspector Nieves’ testimony is found to be credible. 16. Rick Hunsaker (hereinafter “Mr. Hunsaker”) testified that he is a roofing consultant with approximately thirty years of experience. Mr. Hunsaker stated that he performed an onsite inspection on Complainant’s roof. Mr. Hunsaker testified that he observed numerous workmanship deficiencies on Complainant’s roof and prepared a written report.[10] Mr. Hunsaker stated that he found indications of residual moisture in the roof system and the roof structure. Mr. Hunsaker testified that he observed large wrinkles and voids on Complainant’s roof. Mr. Hunsaker stated that large repairs had been performed at the “lap-lines” on Complainant’s roof. Mr. Hunsaker testified that he did not take a core sample of Complainant’s roof. Mr. Hunsaker stated that it appeared that the roof could be a two-ply or a three-ply roof system. Mr. Hunsaker testified that Complainant’s roof was not sound or functional. Mr. Hunsaker opined that Complainant’s roof should be removed and replaced rather than repaired.[11] 17. Mr. Hunsaker testified that he observed that the roof plies on Complainant’s roof were not properly bonded and that he could separate the roof plies with his fingers. Mr. Hunsaker stated that he saw extensive voids on Complainant’s roof. Mr. Hunsaker testified that the vents on Complainant’s roof appeared to have been improperly installed and flashed.[12] 18. Mr. Hunsaker testified that he felt that portions of the roof decking displayed unacceptable deflection and should have been removed and replaced prior to the installation of the roof. Mr. Hunsaker stated that he observed numerous indications of moisture content in the new OSB board installed by West Coast. Mr. Hunsaker testified that he only performed a visual inspection of Complainant’s roof. Mr. Hunsaker stated that he would not hold a contractor liable for a roof leak that occurred at a location that had been cut by someone other than the contractor. Mr. Hunsaker testified that he saw no indication that the roofing membrane had been cut into by a third party.[13] 19. Mr. Hunsaker testified that condition of the roof decking was insufficient to provide a stable base for the installation of the new roof. Mr. Hunsaker stated that he had no objection to the use of OSB board for structural uses. Mr. Hunsaker testified that the use of OSB board was common in the industry. Mr. Hunsaker stated that the area of the roof that he was able to lift up with his fingers did not appear to have been lifted before. Mr. Hunsaker stated that portions of the new roof were obviously caulked. Mr. Hunsaker testified that the parapet walls were masonry and the roof decking was wood. Mr. Hunsaker stated that he always recommended that a contractor follow the manufacturer’s recommendations. Mr. Hunsaker stated that he had not reviewed the manufacturer’s recommendations for Complainant’s roof application. Mr. Hunsaker testified that he did not recommend that a core sample be taken from Complainant’s roof because of the number and scope of obvious deficiencies that he could visually observe on the new roof. Mr. Hunsaker stated that he observed several areas of ponding on Complainant’s roof.[14] 20. Complainant’s son, John Cheney Ricketts III (hereinafter “Mr. Ricketts III”), testified that he was at Complainant’s residence on August 22, 2012, and that he observed a major leak in Complainant’s new roof in the middle of the night. Mr. Ricketts III stated that the roof leaked in several areas. Mr. Ricketts III testified that he had a conversation with West Coast’s representative, Ryan Russell McDaniel (hereinafter “Mr. McDaniel”), on October 16, 2012, and informed West Coast that Complainant was out of the country and would be absent for “about a month.” Mr. Ricketts III stated that he had been on the roof of Complainant’s residence several times. Mr. Ricketts III acknowledged that the roof had leaked before West Coast installed a new roof on the residence. Mr. Ricketts III testified that he examined the roof after West Coast completed the roof, but denied walking on the roof.[15] 21. Mr. Flynn testified that he is a project manager for an insurance restoration company. Mr. Flynn stated that he was aware of Complainant’s desire to have plywood utilized as decking on Complainant’s roof. Mr. Flynn testified that OSB board is less expensive than plywood. Mr. Flynn stated that a written change order would have protected both parties. Mr. Flynn opined that Complainant’s roof should be removed and replaced. Mr. Flynn testified that OSB board is commonly utilized a decking for roofs. Mr. Flynn testified that he would not have utilized an SBS roof system on Complainant’s roof. Mr. Flynn stated that he would have utilized a standard three-ply roof system similar to the roof system that was replaced. Mr. Flynn denied that he cut Complainant’s roof. Mr. Flynn testified that Inspector Nieves saw him pull up a piece of roofing material that had not been “torched” down. Mr. Flynn stated that the roofing system installed on Complainant’s residence was not a three-ply fiberglass roof system. Mr. Flynn testified that he did not know if it was a three-ply SBS roof system.[16] 22. Complainant’s husband, John Cheney Ricketts II (hereinafter “Mr. Ricketts”), testified that Complainant’s roof was cut on the parapet and that the cut had nothing to do with the leak in Complainant’s roof. Mr. Ricketts stated that he told West Coast’s representative, Mr. McDaniel, to replace all of the plywood decking if necessary. Mr. Ricketts testified that he did not discuss the use of OSB board instead of plywood with Mr. McDaniel. Mr. Ricketts stated that no change order was provided for the use of OSB board instead of plywood. Mr. Ricketts testified that plywood was more expensive than OSB board. Mr. Ricketts stated that he denied West Coast access to Complainant’s residence because West Coast would not agree to allow Mr. Flynn to oversee West Coast’s corrective work on Complainant’s roof. Mr. Ricketts testified that West Coast refused to replace the OSB board with plywood. Mr. Ricketts testified that Mr. Flynn stated that he could not finish the interior repairs on Complainant’s rental property until the roof was properly corrected.[17] 23. Mr. Ricketts testified that the house located at 414 S. Abrego, Green Valley, Arizona, is a rental property that was undergoing extensive water repair work as a result of a roof failure prior to West Coast’s work on the property. Mr. Ricketts stated that he signed the contract with West Coast. Mr. Ricketts testified that he told Mr. McDaniel that he wanted West Coast to replace the entire existing roof decking on the rental property with new plywood decking.[18] 24. Mr. Ricketts testified that the parties’ contract provided, in part, as follows: 2. Replace damaged plywood as necessary (To be billed at $45.00 per sheet).[19]

25. Mr. Ricketts testified that there was no ceiling in the interior of the rental residence when the water test was performed by West Coast. Mr. Ricketts stated that he did not remember telling Mr. Nieves that the roof was no longer leaking during Mr. Nieves’s onsite inspection. Mr. Ricketts testified that the roof did not leak during the water test. Mr. Ricketts stated that there is still evidence that the roof is leaking, despite West Coast’s corrective actions. Mr. Ricketts acknowledged that he was on the roof after West Coast completed the new roof before the leak occurred. Mr. Ricketts testified that he walked on the newly installed roof. Mr. Ricketts denied that he walked near the roof scupper where the roof had leaked. Mr. Ricketts stated that Mr. Flynn cut into the roof near a metal vent during Mr. Nieves’s onsite inspection. Mr. Ricketts testified that West Coast had contacted him on several occasions to attempt to gain access to the rental property to perform corrective work. Mr. Ricketts stated that he was unwilling to allow West Coast access to the rental property to comply with the terms of the Corrective Work Order unless West Coast agreed to work under Mr. Flynn’s supervision.[20] 26. Mr. Ricketts’s denial of access to West Coast to perform the corrective action directed in the written Corrective Work Order is found to be unreasonable. 27. Mr. McDaniel testified that he had approximately twenty years of roofing work experience. Mr. McDaniel stated that an SBS roofing system is a commercial quality roofing system. Mr. McDaniel testified that the cap sheet is installed in such a manner as to provide for expansion and contraction. Mr. McDaniel stated that he met Mr. Ricketts at Mr. McDaniel’s roofing material supply store. Mr. McDaniel testified that he inspected the rental property and submitted a roofing proposal to Mr. Ricketts. Mr. McDaniel stated that he recommended that an SBS roofing system be applied. Mr. McDaniel testified that he recommended that Mr. Ricketts contact his insurance company regarding the hail damage on the existing roof. Mr. McDaniel stated that Mr. Ricketts’ insurance company agreed to fund the repair work on the rental residence and that Mr. Ricketts agreed to West Coast’s proposal.[21]. 28. Mr. McDaniel testified that he agreed to replace damaged plywood as necessary. Mr. McDaniel stated that West Coast installed ten sheets of OSB board on the rental property. Mr. McDaniel testified that West Coast offered to replace all of the existing plywood for additional money. Mr. McDaniel stated that Mr. Ricketts rejected the proposal to replace all of the existing plywood. Mr. McDaniel testified that Mr. Ricketts instructed him to only replace the existing plywood boards that required replacement. Mr. McDaniel acknowledged that the new roof leaked on or about August 2, 2012. Mr. McDaniel testified that West Coast performed a water test on the roof and confirmed that the roof leaked near a scupper. Mr. McDaniel stated that he believed that the new roof was damaged by someone walking on it. Mr. McDaniel testified that he saw a shoe print on the new roof by the scupper. Mr. McDaniel stated that West Coast repaired the new roof despite his belief that the leak had been caused by Mr. Ricketts or Mr. Ricketts’s son.[22] 29. Mr. McDaniel testified that West Coast paid a contractor to remediate the moisture that was allowed into the residence by the roof leak near the scupper.[23] Mr. McDaniel stated Mr. Ricketts acknowledged that the roof was no longer leaking during Inspector Nieves’ onsite inspection. Mr. McDaniel testified that Mr. Flynn was present during the roof inspection. Mr. McDaniel stated that he personally observed Mr. Flynn cut into the new roof on a parapet wall. Mr. McDaniel testified that he did not receive a copy of the Corrective Work Order until October 4, 2012. Mr. McDaniel stated that Mr. Ricketts informed him that a Corrective Work Order had been issued and that Mr. McDaniel then contacted the Registrar of Contractors and requested a copy of the Corrective Work Order.[24] 30. Mr. McDaniel testified that he contacted Mr. Ricketts and requested access to the rental property to comply with the terms of the Corrective Work Order. Mr. McDaniel stated that Mr. Ricketts denied access to West Coast . Mr. McDaniel testified that Mr. Ricketts stated that he would only allow access to West Coast to perform the complete replacement of the new roof. Mr. McDaniel denied that Mr. Ricketts offered to allow West Coast to perform the corrective work under Mr. Flynn’s supervision. Mr. McDaniel testified that West Coast was ready, willing and able to perform the corrective work directed in the Corrective Work Order but that Mr. Ricketts had denied reasonable access to West Coast. Mr. McDaniel stated that West Coast repeatedly attempted to gain access to the rental property in order to comply with the terms of the Corrective Work Order.[25] 31. Mr. McDaniel testified that all of the plywood on the roof did not require replacement. Mr. McDaniel stated that the entire roof system on Complainant’s rental property does not require replacement. Mr. McDaniel testified that the waviness on the roof along the parapets is called “raking.” Mr. McDaniel stated that an SBS roofing system is designed for expansion and contraction and that raking is normal. Mr. McDaniel testified that the SBS roof system on the roof of Complainant’s rental property is a commercial grade roofing system that will last “upwards to thirty years.”[26] 32. Mr. McDaniel testified that OSB board is mold resistant. Mr. McDaniel stated that West Coast utilized OSB board for the roof instead of plywood because it lays flatter than plywood and that OSB board is typically utilized for structural roofing applications.[27] 33. Mr. Ricketts testified that Mr. Flynn made a cut on the other side of the roof across from the scupper where the roof leaked. Mr. Ricketts denied that he or Mr. Ricketts III caused the leak on the roof. Mr. Ricketts stated that he specifically directed West Coast to utilize ½ inch plywood on the new roof. Mr. Ricketts testified that West Coast initially informed him that the new roof would require more than twenty sheets of plywood.[28] 34. A small portion of the roof on Complainant’s rental property was cut into by Complainant’s representative. West Coast is not responsible for correcting the damage to the roof caused by Complainant’s representative.[29] 35. Administrative notice is taken of West Coast’s prior license record as reflected on the Registrar of Contractors’ public website on April 1, 2013. Such prior license record reflects that License No. K-42.235353-D of West Coast is current. License No. K-42.235353-D of West Coast was suspended for lack of bond from July 20, 2011, through July 26, 2011, and that License No. K-42.235353-D of West Coast was suspended from February 1, 2010, through February 11, 2010, 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. The parties’ written agreement specified that West Coast was to replace damaged plywood as necessary (to be billed at $45.00 per sheet).[30] The parties’ written agreement does not specify whether the replacement decking material is to be plywood or OSB board. Credible evidence established that the use of OSB board complies with applicable workmanship standards for structural use. The credible evidence of record was insufficient to support a finding that the installation of OSB board constituted a departure from or disregard of plans or specification or any building code. This Tribunal concludes that Complainant failed to meet her burden of proving that West Coast violated the charged provision of A.R.S. § 32-1154(A)(2).[31] 4. Areas of the roofing membrane were rippled along the parapet walls in many areas and on the flat roof areas. Areas at the parapets and up the parapets are not tight to the surface, per applicable workmanship standards. Areas of the roof on Complainant’s rental property still require corrective action. This Tribunal concludes that West Coast violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[32] 5. West Coast failed to display its license number with the acronym “ROC” on written communication with the Registrar of Contractors.[33] This Tribunal concludes that West Coast violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1124(B).[34] 6. West Coast was unable to complete its corrective work on Complainant’s roof due to the unreasonable denial of access by Complainant’s husband. Because construction work is not a perfect art, generally contractors must be allowed to correct their work before their licenses are disciplined as a result of poor workmanship. This Tribunal concludes that Complainant failed to meet her burden of proving that West Coast violated the charged provision of A.R.S. § 32-1154(A)(23).[35] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-42.235353-D of West Coast shall be suspended until the Registrar of Contractors receives and accepts written proof of the following: (1) West Coast has fully complied with the terms of the written Corrective Work Order, except for replacing the installed OSB board with plywood, or acceptable written proof that West Coast was denied reasonable access to Complainant’s rental property to perform the corrective action necessary to comply the terms of the written Corrective Work Order, and (2) West Coast has brought all of its written communications and forms to within full compliance with the provisions of A.R.S. § 32-1124(B). It is further recommended that if West Coast provides acceptable written proof that it has fully accomplished the above described corrective actions, or was denied reasonable access to Complainant’s rental residence, and that it has brought all of its written communications and forms to within full compliance with the provisions of A.R.S. § 32-1124(B), on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter shall be closed. 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, April 4, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 3/18/13 Hearing Record (hereinafter “H.R.”) at 19:00-21:28. [2] A modified Bitumen roofing system. [3] H.R. at 21:29-30:21. [4] H.R. at 30:22-35:17. [5] H.R. at 35:18-38:24. [6] H.R. at 38:25-41:39. [7] Oriented Strand Board. [8] H.R. at 41:40-43:58. [9] H.R. at 43:59-1:00:45. [10] See Exhibit Nos. C-1, C-2, and C-3 (Professional Roof Consultant, Inc Report 3/8/13). [11] H.R. at 1:00:46-1:11:27. [12] H.R. at 1:11:28-1:20:54. [13] H.R. at 1:20:55-1:38:44. [14] H.R. at 1:38:45-2:10:00. [15] H.R. at 2:11:35-2:24:28. [16] H.R. at 2:26:25-2:54:50. [17] H.R. at 2:54:51-3:07:32. [18] H.R. at 3:07-13-3:24:50. [19] See Exhibit No. C-9 (Contract). [20] H.R. at 3:24:51-3:50:55. [21] H.R. at 3:51:30-4:01:55. [22] H.R. at 4:01:56-4:13:23. [23] See Exhibit R-3 (Invoice from ServiceMaster All Care Tucson). [24] H.R. at 4:13:24-4:20:13. [25] H.R. at 4:20:14-4:23:44; see Exhibit R-2 (Phone Log). [26] H.R. at 4:23:45-4:38:13. [27] H.R. at 4:38:14-4:46:55. [28] H.R. at 4:46:56-4:51:18. [29] A.R.S. § 32-1155(C) provides, in pertinent part, as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use.

[30] See Exhibit C-10. [31] 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. [32] 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.

[33] See Exhibit R-2 (Emails). [34] A.R.S. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

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