ALJDEC decisions subject to certification as final

2012A-4419-ROC · Registrar of Contractors · 2013-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 1, 2013 APPEARANCES: Complainants were represented by Robert Porter. Respondent appeared through Bruce Forsythe, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 61.124828-R to Forsythe and Sons Construction Inc (“Respondent”). On September 7, 2012, the Registrar received a Complaint against Respondent from James J Morgan and Pamela A. Johnson (“Complainants”) regarding issues with their roof that was installed by Respondent at 9565 E. Poinsettia Avenue, Scottsdale, Arizona. After the Registrar assigned the Complaint to its inspector, Jim Dimond, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on October 19, 2012, included the following: Item 1 – Roof leaks over master bath. This item was no longer an issue. No action is required of the contractor. Item 2 – Roof leaks in office. This item was no longer an issue. No action is required of the contractor. Item 3 – Roof is coming loose and has large bubbles in various areas. The roofing material has bubbled and wrinkled and the butt seams are coming apart. Further investigation revealed that this product is intended to only be a component of a roofing system, not the roofing system. Contractor is to correct the condition in an appropriate manner. Item 4 – Improper flashing was used and has leaked in two front bedrooms below parapet. This flashing is improperly installed. Contractor is to correct the condition in an appropriate manner.

Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on November 1, 2013. Inspector Dimond testified about the Registrar’s standards. Complainant submitted one exhibit and presented the testimony of James J Morgan. Respondent presented the testimony of Bruce C. Forsythe, its Qualifying Party. Hearing Evidence In November 2010, Respondent entered into a contract with M. Craig Masson, the owner of the property at the time. At the time, Mr. Masson did not have sufficient funds to install the entire roofing project he desired. Based on the funds he received from an insurance claim, Mr. Masson contracted with Respondent to install the initial roofing component necessary to complete his desired “MirrorSeal” roofing system. The invoice indicated that Respondent would “COAT LOW SLOPE FELT WITH ELASTOMERIC COATING [WILL ALLOW A MIRROR SEAL INSTALLATION AT A LATER DATE]”. Exhibit A p. 31. Respondent completed installation of the initial roofing component on November 30, 2010. According to Mr. Forsythe’s testimony, the roofing component he installed was not intended to be the final roofing system. Mr. Masson did not contract with Respondent to install the remaining components of the “MirrorSeal” roofing system. In 2012, Complainants entered into a contract to purchase the property in question. In connection with the contract, Complainants confirmed with Respondent that there was an existing warranty on the roof. By email dated June 19, 2012, Mr. Forsythe stated that “Forsythe and Sons Construction Inc. offer[s] a two year warranty on installation of this product. The manufactor’s [sic] warranty is contained on their web site.” Exhibit A p. 36. Complainants also had a roof inspection completed during the process. Once Complainants completed the purchase of the property, they immediately observed issues with leaks in the home stemming from problems with the roof. Complainants contacted Respondent regarding necessary repairs to the roof to address the leaks. After the issue was not resolved, Complainants filed the Complaint with the Registrar on September 7, 2012. According to the testimony offered, the initial roofing component installed by Respondent was not intended to be a component of a roofing system and not a roof itself. Mr. Forsythe testified that Respondent had a contract with Mr. Masson and had not contracted with Complainants. Mr. Forsythe also stated that Respondent fulfilled the requirements of the contract by installing the roof component and the flashing. According to Mr. Forsythe, both the roof component and the flashing were the appropriate material and were installed appropriately for the “MirrorSeal” finish that was intended. Mr. Forsythe brought into question Complainants’ intentions because they had a roof inspection prior to purchasing the home. Mr. Forsythe also indicated that at the time Complainants filed the Complaint with the Registrar, there were only two months remaining on the warranty. Complainant testified that since the Corrective Work Order, the leaks in the master bath and office had returned and needed to be addressed. Inspector Dimond testified he performed a prehearing inspection at which he observed no work had been done by Respondent. Inspector Dimond also noted that the leaks in the master bath and office that did not appear to be an issue at the time of the initial inspection were present and appeared to be related to the roofing issues. Inspector Dimond testified that Respondent would have been relieved of any responsibility if it had obtained a waiver from Mr. Masson indicating that the roofing component installed was not intended to be a roofing system and was to be covered by the “MirrorSeal” or other equivalent finish. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 21, 2013. Such prior License record reflects that Respondent’s License No. C-61.124828-R was current. Such prior License record also reflects that there were no prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 undisputed credible testimony established that Respondent did not install a complete roofing system and installed only a roofing component that led to leaks and damage to the property. Therefore, Complainants established that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(23).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Forsythe and Sons Construction Inc’s License No. C-61.124828-R until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainants’ Complaint in Case No. 2012-4419. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such 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 Respondent tenders payment of any outstanding prior civil penalty. 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, November 21, 2013.

/s/ Tammy L. Eigenheer 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 suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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