ALJDEC decisions subject to certification as final

2013A-4025-ROC · Registrar of Contractors · 2015-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 31, 2015, at 8:15 a.m. The hearing was held via videoconference from the office of the Registrar of Contractors (“Registrar”) in Flagstaff, Arizona. APPEARANCES: Susanne Boutellier (“Complainant”) appeared on her own behalf; R E W Roofing Inc. (“Respondent”) appeared through its qualifying party and president, Truitt Orville Webb. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. According to the Registrar’s public website, on August 7, 2000, License No. CR42.157772-D for dual roofing was issued to Respondent. The license was administratively suspended between September 16, 2013, and October 15, 2013, for lack of bond and between September 1, 2013, and October 17, 2013, for non- renewal. 2. On or about August 23, 2013, Complainant filed a complaint with the Registrar against Respondent’s license based on its alleged failure to perform in a professional and workmanlike manner its January 27, 2012 contract to install a metal roof on a property that Complainant owned at 1255 Vail Rd., in Camp Verde, Arizona 86322. Specifically Complainant alleged that approximately 1,500 sq. ft. of metal panels were rusting and that there was a hole in the crown piece above the guest house. 3. The Registrar assigned the complaint to its Investigator in its Flagstaff office, Rick Emry, to investigate. Investigator Emry performed a jobsite inspection and, on September 20, 2013, issued a written directive to Respondent, directing it within 20 calendar days to correct both of Complainant’s complaints, as well as repairing a leak near the roof top condenser unit above the dining room, which complaint was added at the jobsite inspection. The directive noted that because Respondent’s license was administratively suspended, it could not perform or subcontract the corrective work until the suspension was lifted. 4. Shortly thereafter, Investigator Emry left the Registrar’s employment. In October 2013, the complaint was reassigned to the Registrar’s Investigator Tom Sandoval. 5. Complainant subsequently contacted Investigator Sandoval. On or about July 8, 2014, Investigator Sandoval performed a compliance inspection. 6. Inspector Sandoval testified that the metal roof panels had been replaced and that all the items on the September 20, 2013 directive had been repaired in a professional and workmanlike manner. 7. Investigator Sandoval testified that at the July 8, 2014 compliance inspection, Complainant complained that Respondent had failed to obtain a permit for the job and that several rooms had interior water damage that had not been repaired. Inspector Sandoval testified that although these items were not on the September 20, 2013 directive, Respondent’s representative agreed at the compliance inspection to repair them. 8. Complainant subsequently requested that the Registrar issue a citation against Respondent’s license. On or about June 2, 2015, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. §§ 32-1154(A)(2)[1] and 32-1154(A)(3),[2] specifically A.A.C. R4-9-108.[3] Respondent filed a written answer to the citation, denying that cause existed under the charged statutes to discipline its license. 9. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. A hearing was held on August 31, 2015. Investigator Sandoval testified. Complainant testified. Respondent’s qualifying party and president, Truitt Webb, testified on its behalf. 11. Investigator Sandoval testified that he performed a prehearing inspection on August 24, 2015, and that at that time, Complainant indicated that Respondent had corrected all the items that it had agreed to correct at the July 8, 2014 compliance inspection and had obtained a permit for the job. 12. Investigator Sandoval testified that at the August 24, 2015 prehearing inspection, Complaint complained that the ridge cap on the metal roof was rusting, roof caulking was coming out around the eave, and there was damage on a patio from an alleged roof leak. 13. Investigator Sandoval testified that none of these items were on the original complaint or the September 20, 2013 directive or included in the items that Respondent agreed to repair at the July 8, 2014 compliance inspection. Inspector Sandoval testified that he informed Complainant that if less than two years had passed since Respondent had performed the work that resulted in the alleged deficiencies, she could file a new complaint with the Registrar. 14. Investigator Sandoval testified that the rust on the ridge cap was just surface rust that would result any time that metal was cut and would not cause the roof to leak within the warranty period. 15. Investigator Sandoval testified that in his opinion, the loose caulking was a homeowner maintenance issue. 16. Investigator Sandoval testified that he did not perform a water test at the August 24, 2015 prehearing inspection, but that Investigator Emry’s notes indicated that he had performed a water test at the original jobsite inspection in 2013 and found no leaks. Inspector Sandoval testified that he did not know whether the water damage that Complainant pointed out around the skylight had occurred before Respondent replaced the original foam roof with the metal roof. 17. Investigator Sandoval testified that Complainant also pointed out a few screws that were popping out from the metal roof. Investigator Sandoval testified that such screws were a result of the expansion and contraction of the metal roof in the hot sun in Camp Verde and that Respondent had fully complied with the September 20, 2013 directive. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[4] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 3. Complainant did not bear her burden to establish cause to suspend or revoke Respondent’s license under A.R.S. §§ 32-1154(A)(2) and 32- 1154(A)(3), specifically A.A.C. R4-9-108. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Complainant Susanne Boutellier’s Complaint in Case No. 2013-4025 against Respondent R E W Roofing, Inc.’s License No. CR42-157772-D 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 five days from the date of that certification. Done this day, August 31, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any 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.” [2] 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.” [3] 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.” [4] See A.R.S. § 32-1154(A). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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