ALJDEC decisions subject to certification as final

2013A-4297-ROC · Registrar of Contractors · 2014-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2014, at 8:00 a.m. APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General, Michael Raine, Esq. David Kent Hawkins dba Hawkins Roofing (hereinafter “Respondent,” “Hawkins,” “contractor,” or “Mr. Hawkins”) was represented by Bernard C. Porter, Esq., Porter Law Center Chartered. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT Hawkins is the holder of License No. C-42.253081-R issued by the Registrar of Contractors.[1] On or about March 15, 2012, Hawkins entered into a written contract with Barbara Watson (hereinafter “Ms. Watson”) to remove and replace the existing roof on Ms. Watson’s residence located at 707 E. Tremaine Ave, Gilbert, Arizona 85234 for the sum of $15,500.00. In addition to the removal and replacement of the existing roofing on Ms. Watson’s residence, Hawkins removed and reinstalled some T-111 wood siding on Ms. Watson’s residence. Ms. Watson was dissatisfied with Hawkins’ workmanship and requested that Hawkins properly correct its workmanship on her residence. When Hawkins failed to comply with Ms. Watson’s request, Ms. Watson filed a formal Complaint against Hawkins with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector/ Investigator, Ted Gerold (hereinafter “Inspector Gerold”), conducted an onsite inspection. Inspector Gerold issued a written Corrective Work Order on February 27, 2013, directing Hawkins to perform certain corrective work on Ms. Watson’s residence. The Corrective Work Order provided, in pertinent part, as follows: 1) There were minor drywall cracks at 3 corners at the kitchen recessed ceiling. I also noticed some drywall texture repair that was not associated with the roof install.

2) In the master bedroom there are cracks that are present as well as prior drywall repairs especially at the drywall tape joints. This occurs throughout the master bedroom ceiling.

Summation of items #1 and #2: Due to the age of this home, how minor the cracks in the kitchen are - along with prior repairs, the way the drywall was installed at the master bedroom ceiling and the prior repairs to that ceiling as well, and the information provided by the [R]espondent reflecting an engineer’s opinion of the matter, this inspector does not find the contractor responsible for any drywall cracking in the house. Installing any new roof can involve extra weight during installation, causing minor cracks in the drywall. This is not a fault of the contractor. There was no evidence at the jobsite inspection revealing any structural damage. No structural engineering report was provided by the complainant showing contrary to the contractor’s report. No action is required by the contractor regarding items #1 and #2.

3) The siding that was either lifted or removed by this contractor during roof install was improperly re-installed and somewhat damaged at the rear and improperly re-installed at the front. Contractor to correct.

4) There is the appearance of leaves and other debris that has improperly infiltrated the skylight. Contractor to correct.

5) There are cracked and broken tiles present on the roof. No cracked tiles are acceptable and shall be replaced. Any broken corners larger than the size of a quarter shall be replaced. Contractor to correct where necessary.

6) Roof tiles are improperly cut around one roof jack. Contractor to correct.

7) The cement or mortar material at the ends of the edge tile appear to be within industry standards. No action is required by the contractor.

8) Although the roof jack metal is not painted, through my research, this inspector has found no industry standards or code requirements that mandate that the roof jacks have to be painted. No action is required by the contractor.

9) There is a portion of the covered patio roof that is excessively wavy. This inspector could not determine at the jobsite inspection whether it’s the installation of the plywood or the roof rafters that caused the waviness. Per the contract, the contractor was only responsible for the plywood replacement not the rafters. No action is required by the contractor.

Hawkins failed to comply with the terms of the Corrective Work Order and on December 17, 2013, the Registrar of Contractors issued a Citation and Notice of Hearing charging Hawkins with possible violations of A.R.S. § 32- 1154(A), specifically, § 32-1154(A)(3),[2] namely, A.A.C. R4-9-108,[3] A.R.S. § 32-1154(A)(13),[4] namely, A.R.S. § 32-1158(B),[5] and A.R.S. § 32- 1154(A)(23).[6] Hawkins, by and through its counsel of record, stipulated that the parties’ written contract provided by Hawkins did not contain all of the elements required by statute and that the contract failed to comply with the provisions of A.R.S. § 32-1158(B). Testimony of Registrar Inspector/Investigator Ted Gerold Inspector Gerold testified that he examined each item of the Complaint when he performed his first onsite inspection on February 21, 2013. Inspector Gerold testified that he issued a Corrective Work Order on February 27, 2013. Inspector Gerold testified that the construction work performed by Hawkins did not meet applicable workmanship standards. Inspector Gerold stated that he observed debris in the skylight installed by Hawkins. Inspector Gerold testified that he observed cracked and broken roof tiles present on the roof. Inspector Gerold stated that the roof tiles along the edge of the roof were not properly cut. Inspector Gerold testified that the roof jack was not properly installed and that Hawkins installed the flashing on the roof “backwards.” Inspector Gerold testified that he performed a “follow-up” inspection on Ms. Watson’s roof on September 6, 2013. Inspector Gerold stated that he observed that some corrective work had been performed by Hawkins. Inspector Gerold testified that all of the corrective work directed in the Corrective Work Order had not been performed. Inspector Gerold stated that the corrective work that had been performed by Hawkins was unsuccessful. Inspector Gerold opined that Hawkins had failed to comply with the terms of the Corrective Work Order. Inspector Gerold’s testimony is found to be credible. Testimony of Sterling Watson. Sterling Watson (hereinafter “Mr. Watson”) testified that he is Ms. Watson’s son. Mr. Watson testified that he has personally examined Ms. Watson’s roof and has taken photographs of the roof.[7] Mr. Watson stated that the photographs establish that galvanized roofing nails have not been painted, that the damaged T-111 siding on Ms. Watson’s residence has not been corrected, that all of the broken roof tiles have not been replaced, and that at least one of the roof tiles has a crack with a chip larger than a quarter. Mr. Watson opined that Hawkins had failed to comply with the terms of the Corrective Work Order. Mr. Watson’s testimony is found to be credible Testimony of David Kent Hawkins Mr. Hawkins testified that he is the owner and qualifying party for Hawkins. Mr. Hawkins acknowledged that Hawkins purchased and installed the skylight in Ms. Watson’s residence. Mr. Hawkins stated that he believes that the skylight is defective. Mr. Hawkins testified that he had repeatedly attempted to correct the skylight. Mr. Hawkins acknowledged that his employees had inadvertently damaged portions of the T-111 siding on Ms. Watson’s residence while they were installing the new roof on the residence. Mr. Hawkins testified that Hawkins had performed corrective work on Ms. Watson’s residence and that he believed that Hawkins had fully complied with the terms of the Corrective Work Order. Mr. Hawkins acknowledged that the contract for the construction project was prepared and furnished by Hawkins. Mr. Hawkins testified that the contract failed to contain an estimated date of completion of all work to be performed under the contract and that the contract failed to inform Ms. Watson that she had the right to file a written complaint with the Registrar of Contractors for an alleged violation of A.R.S. § 32-1154(A). Mr. Hawkins acknowledged that the contract failed to comply with the provisions of A.R.S. § 32-1158(B). Administrative notice is taken of Hawkins’ prior license record as reflected on the Registrar of Contractors’ public website on February 24, 2014. Such prior license record reflects that License No. C-42.253081-R of Hawkins is current. License No. C-42.253081-R was suspended for lack of bond from March 24, 2012, through March 28, 2012, and suspended for lack of bond from June 25, 2012, through October 22, 2012. 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 galvanized roofing nails on Ms. Watson’s roof have not been painted, the damaged T-111 siding on Ms. Watson’s residence has not been properly corrected, all of the broken roof tiles on Ms. Watson’s roof have not been replaced, and at least one of the roof tiles has a crack with a chip larger than a quarter. This Tribunal concludes that Hawkins violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. 4. The proposal prepared by Hawkins and utilized by the parties as their contract did not have an estimated date of completion, did not provide written notice that the homeowner had a right to file a complaint with the Registrar of Contractors, did not contain the Registrar's telephone number and website address, and did not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32-1155(A). This Tribunal concludes that Hawkins violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158(B). 5. Hawkins failed to fully comply with the terms of the Corrective Work Order. Hawkins failed to correct the skylight on Ms. Watson’s roof. Hawkins failed to paint the galvanized nails in Ms. Watson’s roof. There are still broken and chipped roof tiles on Ms. Watson’s roof. There was no credible evidence of any denial of access. This Tribunal concludes that Hawkins violated the charged provision of A.R.S. § 32-1154(A)(23). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. C-42.253081-R of Hawkins shall be suspended for a period of five days. It is further recommended, in addition to the above-provided penalties, if any, that Hawkins pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Hawkins to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Hawkins’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Hawkins, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, February 25, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Pursuant to A.A.C. R4-9-103, a C-42 license allows a contractor to perform the “[i]nstallation and repair of materials common to the industry that form a water tight, weather resistant surface for roofs and decks, including all accessories, flashing, valleys, gravel stops, and roof insulation panels above the roof deck. This scope includes all C-42R subclassifications.” [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [3] 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.

[4] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [5] A.R.S. § 32-1158(B) provides, in pertinent part, as follows: From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

[6] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other 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. [7] See Exhibit Nos. 11-13.

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