ALJDEC decisions subject to certification as final

2012A-734-ROC · Registrar of Contractors · 2012-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2012, at 1:00 p.m. APPEARANCES: Complainant Lyle White appeared on his own behalf; Respondent Glendale Roofing Company, Inc. was represented by Gregg Clarke Gibbons, Esq., Gregg Clarke Gibbons, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-42.179132-D to Glendale Roofing Company, Inc. (“Respondent”). 2. On or about February 8, 2012, the Registrar received a complaint from Lyle White (“Complainant”). Complainant alleged three specific complaints about Respondent’s performance of its contract to replace the roofs on the house and barn at Complainant’s property at 15026 North 40th Lane, Phoenix, Arizona, as follows: (1) A ceiling leak caused mold that Complainant had to remediate; (2) A leak on the patio ceiling damaged tongue-and-grove that Complainant had to replace; and (3) Respondent failed to perform the final walkthrough. 3. On the complaint, Complainant stated under penalty of perjury that the original contract amount was $20,992.00, that he had paid Respondent $11,447.98, and that he still owed Respondent $9,544.02. Complainant requested that the Registrar require Respondent to “pay for the mold remediation and drywall repair and paint to my ceiling from the damage caused by [its] employees.” 4. The Registrar’s assigned inspector, Ted Gerold, performed a jobsite inspection on March 2, 2012. After Inspector Gerold determined that all the original complaint items either had been completed or were within the Registrar’s standards, Complainant raised additional issues. Inspector Gerold issued an informal Corrective Work Order (“CWO”) on Complainant’s new complaints.[1] Inspector Gerold’s notes of his March 2, 2012 inspection summarize his findings on Complainant’s new complaints: 1) Drip edge slipping at south end of patio. Contr should fix

2) SW corner of house has chipped and or rotten fascia board at the very mitered corner. Per contract contr should replace.

3) Some damage done to fence and gate. Just one scrape mark at the gate was in my opinion caused by the contr. However, this was done last [May] so it won’t be within our jurisdiction.

4) Railroad tie was dislodged by contractor equipment. I saw no concrete evidence supporting this. Contr nor responsible

5) The plywood in the eaves is NOT substantially splintered. Contr not responsible

6) The 90 degree flashing was not replaced at the front side of house. Contr to fix

7) The garage overhang drip edge is not tight to the shingle mold. Contr to fix

8) Drip edge on right hand side of front barn overhang beam not cut properly. Contr to fix

9) North side of beam the drip edge has excessive bulges in it. Contr to fix

10) All along the north side of the barn the drip edge is wavy, not sure if it meets standards. Contr to fix??

5. On or about March 20, 2012, Inspector Gerold sent a letter to the parties, informing them as follows: We are in receipt of your complaint with the Registrar of Contractors (ROC). A ROC Inspector was assigned to investigate your complaint. After investigation, the ROC has determined that:

At the jobsite inspection on 03/02/2012 I found all items on the original complaint filed by the complainant to have been either properly addressed by the respondent prior to the jobsite inspection, or were within standards in this inspector’s opinion.

The corrective work order dated 03/06/2012 consisted of NEW items discussed at the jobsite inspection and sent to both parties ONLY as a courtesy. This corrective work order is NOT part of this complaint’s record nor will it ever be.

The complainant can, however, submit these additional items to our office as an addendum to this complaint.

Based on the above, a citation will not be issued against the contractor at this time. However, you may request in writing, a further review of your complaint. If you have additional information to support your complaint, you should submit it with your request for review. After such review, a determination will be made on whether a citation should be issued.

6. On or about March 20, 2012, Complainant filed an addendum to his complaint against Respondent. 7. On April 4, 2012, Inspector Gerold performed a second jobsite inspection. On April 6, 2012, Inspector Gerold issued a formal CWO that required Respondent to take corrective action with respect to two of Complainant’s additional items of complaint within 15 calendar days, in relevant part as follows: 1) In some areas around the house, the drip edge is at an improper angle. This issue is new and per both parties was allowed to be discussed at the inspection. It does need to be corrected by the contractor.

2) In this inspector’s opinion all of the patio roof is within industry standards. No action is required by the contractor.

3) The drip edge over the garage overhead doors is within industry standards. No action is required by the contractor.

4) The drip edge along the roof to the right of the front entry is within industry standards. No action is required by the contractor.

5) Insufficient evidence was provided to show contractor responsibility for the dislodging of the railroad tie. No action is required by the contractor.

6) The fascia board on both sides of the entry is not in a rotted state but is splintered due to the excessive amount of nails used to secure it. The contract calls for 40 feet of fascia to be replaced. I measured approximately 24 feet actually replaced. In reviewing the contract it states “Replace 40 lineal feet of fascia[.]” It does not stipulate any condition or any specific reason for replacing the fascia. This contractor is to replace the fascia at both sides of the front entry and either an additional 10 feet elsewhere if needed, or fairly compensate the complainant for the remaining 10 feet.

8. After Complainant requested a hearing, the Registrar issued a Citation and Complaint against Respondent charging A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). 9. Respondent’s attorney filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that Complainant denied reasonable access to allow Respondent to comply with the formal CWO. 10. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 11. A hearing was held on July 30, 2012. Inspector Gerold testified. Complainant submitted three exhibits and testified on his own behalf. Respondent submitted two exhibits and presented the testimony of two witnesses: (1) Thad Brown, Respondent’s Senior Quality Control Manager; and (2) Geneva Carol White, Complainant’s wife, who handled the insurance payments and disbursements on the project. 12. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on August 17, 2012, Respondent’s License No. K- 42.179132-D was current, one complaint was pending against the license, seven complaints were resolved/settled/withdrawn, and Respondent’s obligations had been assumed by License No. K-42.275143-D issued to Glendale Roofing & Construction LLC. Hearing Evidence 13. The roofs on the house and barn at Complainant’s property were damaged by a hailstorm in October 2010. Complainant and his wife made a claim to their homeowner’s insurer for the damage. Complainant’s homeowner’s insurer approved the claim. 14. According to the Registrar’s public website, Complainant is a member of Rapid Response Restoration, Inc. (“Rapid Response”), License No. K- 5.240043-D for water damage and mold removal. Complainant’s wife works for Rapid Response from an office in her and Complainant’s house. On or about April 14, 2011, Respondent submitted a proposal to replace the roofs on the house and barn at Complainant’s house and related work, for a total price of $27,505.00.[2] Complainant accepted the proposal. 15. Mr. Brown was the employee who was responsible for Respondent’s compliance with the April 6, 2012 formal CWO. Mr. Brown has extensive experience in construction and roofing. Mr. Brown was issued contractor’s licenses in Wisconsin in 1991, and in Florida in 2007. Mr. Brown has passed the written examination in Arizona but is waiting for accreditation letters to submit to the Registrar for licensure. Mr. Brown has been certified by numerous manufacturers to install the roofing materials and systems that they manufacture. 16. Inspector Gerold testified that he did not perform a prehearing jobsite inspection because both parties informed him that Respondent had not performed work to comply with the April 6, 2012 formal CWO. 17. Complainant testified that he allowed Respondent to perform repairs to comply with the informal CWO in March 2012, but that Respondent’s crew “ripped stuff up” and left metal and debris all over the property. 18. Mr. Brown testified that he went to Complainant’s property to repair the fascia and drip edge on or about April 3, 2012, before Inspector Gerold issued the April 6, 2012 CWO. Mr. Brown testified that he knew these items required correction based on Inspector Gerold’s informal CWO and the March 2, 2012 initial jobsite inspection.[3] Mr. Brown testified that he showed Respondent’s crew the necessary repairs and knocked on Complainant’s door, but Complainant did not answer. 19. Mr. Brown testified that he set up the crew to perform the repairs and left to run an errand. A short time later, Enrique, the crew foreman, called him to say that Complainant had asked the crew to leave his house. Mr. Brown testified that the crew packed up and left and he returned to Respondent’s office. 20. Mr. Brown testified that after the April 6, 2012 CWO was issued, he sent nine e-mails to Complainant requesting him to provide 24 hours notice of a time during which he would allow access for Respondent to perform the two repairs that the formal CWO required. Respondent submitted copies of the e-mails.[4] 21. Mr. Brown testified that Complainant did not respond to any of the e- mails, with the exception of one. On April 16, 2012, Mr. Brown requested access and Complainant responded to Respondent’s general e- mail address, not to Mr. Brown, agreeing to provide access on April 17, 2012, between 8:00 a.m. and 12:00 p.m. Mr. Brown confirmed the appointment in an e-mail to Complainant sent on April 16, 2012, at 10:35 p.m. On April 17, 2012, at 6:33 a.m., Complainant responded to Mr. Brown’s e-mail, stating that because “I specifically asked that the owner contact me and not an employee, and not at 10:30 at night,” the appointment time was no longer available. 22. Complainant stated that he was not willing to grant further access to Respondent based on two incidents that occurred before the April 6, 2012 formal CWO was issued: 1. Complainant testified that Respondent put a second piece of metal over the flashing on the patio, but later stole the second metal piece from his property. Complainant testified that he should have called the police. 2. Complainant testified that although he requested Respondent to cover the flagstone patio while its crew performed work, Respondent failed to comply with the request. 23. With respect to Complainant’s theft accusation, Mr. Brown explained that Complainant’s back patio had a flat roof with a drip edge. Because Complainant did not like the drip edge that Respondent installed, Respondent’s employee who was initially responsible for addressing Complainant’s complaint, Joe Nelson, used caulk to glue a gutter extension behind the drip edge, but by the time that Mr. Brown became involved, the extension had slipped out. Because the extension created a safety hazard, Mr. Brown testified that he instructed Enrique to remove the gutter extension.[5] 24. With respect to Complainant’s concerns about Respondent’s alleged failure to protect his property while performing repairs, Mr. Brown read into the record his April 20, 2012 response to Complainant’s e- mail to Respondent’s president. Mr. Brown assured Complainant that Respondent would take steps to protect plants and the flagstone, informing him that Respondent always runs a magnetic rake over the property after performing roofing or repairs to make sure that it removed all debris. Mr. Brown assured Complainant that the CWO was “nothing but a punch list, so it will be quick and clean . . . .” 25. Mr. Brown testified that when he called Complainant to go over the items that he knew would need to be corrected, Complainant asked him why Respondent had taken the metal “off the whole house.” Mr. Brown testified that when he returned to Complainant’s property with the proper fascia and drip edge to complete the repairs, Complainant called him a liar and thief and stated that Respondent would not be allowed to perform any further repairs. Mr. Brown denied that he or anyone else employed by Respondent ever lied to Complainant or stole anything from him. 26. Inspector Gerold testified that Item No. 1 on the April 6, 2012 CWO involved the drip edge at the front part of the house, not the patio roof. Inspector Gerold testified in his opinion, the patio roof complied with industry standards. Inspector Gerold testified that he did not remember and his notes did not reference any complaint about metal that Respondent had removed from the patio. 27. Mrs. White testified that her and Complainant’s homeowner’s insurer had paid the full amount of their insurance claim for damage to their roofs, which she believed was in an amount between $26,000.00 and $27,000.00. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A).[6] 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[7] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] 3. A contractor must be afforded access and an opportunity to perform corrective work to comply with the Registrar’s directive before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(23).[10] Because Respondent established that Complainant did not allow access for Respondent to comply with the April 6, 2012 formal CWO, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23). 4. Although the drip edge and fascia at the front entry did not fully comply with the Registrar’s standards, evidencing a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[11] these items are relatively minor punch list repairs. Construction is not a perfect art and usually contractors must be afforded an opportunity to repair minor workmanship deficiencies before their licenses are disciplined. Because Complainant’s past reasons for denying access were patently pretextual and because he indicated that he would not provide any future access to Respondent, a requirement that Respondent perform further repairs as a condition of avoiding discipline is not appropriate. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant Lyle White’s complaint against Respondent Glendale Roofing Company, Inc.’s License No. K-42.179132-D in Case No. 2012-734 be closed. 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, August 20, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The record does not contain the informal CWO. This Finding of Fact was based on Inspector Gerold’s testimony at the hearing and his notes of his March 2, 2010 initial jobsite inspection. [2] See Respondent’s Exhibit A. [3] See notes quoted at Finding of Fact 4 (Item Nos. 2 and 6). [4] See Respondent’s Exhibit B. [5] The gutter extension apparent among the additional complaint items that were discussed at the initial jobsite inspection. See Inspector Gerold’s notes quoted at Finding of Fact No. 4, No. 1. [6] See A.R.S. § 32-1151 to A.R.S. § 32-1169. [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] See A.A.C. R2-19-119(B)(2). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] 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.” (Emphasis added.) [11] 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.”

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