ALJDEC decisions subject to certification as final

2014A-1144-ROC · Registrar of Contractors · 2015-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2015, at 8:00 a.m. APPEARANCES: Richard B. Marx (hereinafter “Complainant” or “Mr. Marx”) appeared on his own behalf; Solid Rock Roofing LLC (hereinafter “Respondent”) was represented by its Qualifying Party/Member, Juan M. Torres (hereinafter “Mr. Torres”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of License No. CR42.181190-D issued by the Registrar.[1] Respondent’s License No. CR-42.181190-D is current. 2. This is a residential matter in which on or about January 21, 2014, Complainant contracted with Respondent for the complete replacement of the roof on his residence at 3015 E. Columbus Ave., Phoenix, Arizona 85016 (hereinafter the “residence”).[2] 3. Respondent completed its initial work on the residence and Complainant deemed the new roofing work to be “shoddy” and requested corrective work on the new roof. Respondent performed corrective work on Complainant’s roof and on or about February 1, 2015, Complainant paid Respondent in full for its construction work. 4. During the first rainfall on or about March 1, 2014, the new roof leaked and Complainant notified Respondent of the leaking problems with the roof. Respondent agreed to correct the problems with new roof but failed to correct the problems with the roof in a timely manner. 5. On or about March 21, 2014, Complainant filed a Complaint against Respondent with the Registrar. 6. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. 7. On June 24, 2014, a written Directive was issued by the Registrar. 8. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. New tile underlayment left inches shy of edge of roof. Correct by appropriate means.

2. Replaced scuppers are cheap, ugly and one spills water onto the block fence. Correct by appropriate means.

3. Leaking in front of the fire place and ceiling. Correct by appropriate means.

4. Substantial pooling of water on the flat roof over ½” minimum standard from front to back of roof. Correct by appropriate means.

5. Raised tile in some areas. Correct by appropriate means.

9. The parties disputed whether Respondent had complied with the terms of the written Directive issued by the Registrar. 10. When the parties were unable to resolve their dispute, Complainant requested that the Registrar to issue a Citation against Respondent’s license. 11. On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[3]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[4]

Testimony 12. The assigned Registrar Investigator, Timothy Pennington (hereinafter “Investigator Pennington”), testified that he issued the Directive in this matter after his first onsite inspection. Investigator Pennington stated that he performed a water test during the initial inspection. Investigator Pennington said that he could not get the roof to leak at that time. 13. Investigator Pennington testified that on or about August 25, 2014, he performed a compliance inspection on the roof, after the work was reportedly corrected by Respondent, and that initially he was still unable to find a leak in the roof. Investigator Pennington said that Respondent had failed to correct the scuppers to the homeowner’s satisfaction. Investigator Pennington reviewed photographs of Respondent’s work on the scuppers and said that the Respondent had failed to correct the scuppers as required by the written Directive.[5] 14. Investigator Pennington stated that approximately two and one-half hours after he completed the compliance inspection at Complainant’s residence, Complainant contacted him and said the roof was now leaking. Investigator Pennington said that he returned to Complainant’s residence and observed that the roof was leaking in several areas. Investigator Pennington said he observed that the roof was leaking by a back scupper and by the air conditioning unit. 15. Investigator Pennington testified that Complainant did not want him to issue a second directive to correct the leaking roof because Complainant wanted to go to a hearing, rather than having Respondent return and perform further corrective work on his residence. Investigator Pennington reviewed a photograph of the flashing around Complainant’s fireplace and testified that he could not have seen the flashing from the ground.[6] 16. Investigator Pennington’s testimony is found to be credible. 17. Mr. Marx testified that in accordance with the terms of the parties’ written contract, Respondent was supposed to counter-flash around the chimney and replace the old scuppers with new scuppers. Mr. Marx stated that Respondent did not properly replace the scuppers with new scuppers and failed to properly flash around the chimney. 18. Mr. Marx testified that he had retained other roofers to inspect Respondent’s roof work and that all of the other roofing contractors found Respondent’s roofing work to be unworkmanlike and to require removal and replacement.[7] 19. Mr. Marx testified that Respondent did not comply with the terms of the written Directive. Mr. Marx stated that the roof has now been replaced by another roofing contractor. Mr. Marx said that when the roof was replaced it was discovered that Respondent had failed to replace the original scuppers. Mr. Marx said that Respondent had simply performed some cosmetic work around the exterior of the original scuppers. Mr. Marx said that Respondent failed to perform its work in a workmanlike manner and failed to comply with the terms of the parties’ construction agreement. 20. Mr. Marx testified that he wanted to make it clear that he had made a good faith effort to allow Respondent to return to his residence and to properly correct the roof. Mr. Marx stated that Respondent failed to properly correct the roof despite repeated opportunities to do so. Mr. Marx said that he had documentation that the roof applied by Respondent was leaking in several areas. Mr. Marx said that Respondent had no apparent interest in correcting the leaking roof. Mr. Marx said that repeated water testing was damaging the interior of his residence, which is why he did not want Investigator Pennington to issue a second Directive to Respondent to correct the leaking roof. 21. Mr. Marx testified that KNC Contracting Inc. was contracted by his homeowner’s insurance company to perform a detailed inspection of the roof installed by Respondent. Mr. Marx stated that the initial estimate was revised and increased due to the continued leaking and water damage caused by the leaking roof installed by Respondent. Mr. Marx said that written report prepared by KNC Contracting Inc. substantiated that the roof installed by Respondent on Complainant’s residence was leaking and causing water damage in several different locations.[8] 22. Mr. Marx’s testimony is found to be credible. 23. Mr. Torres testified that Complainant wanted to reuse the old tile on his residence after the underlayment was replaced. Mr. Torres said that the parties had agreed to eliminate some roof tile around the chimney so that they could re-use the old tile around the chimney as replacement tile for other areas of the roof. Mr. Torres said Respondent does not install foam roofs and that the installation of a foam roof was not in Respondent’s proposal. Mr. Torres said that he discussed the condition of the scuppers with Mr. Marx and that Mr. Marx agreed to the type of work that Respondent performed on the scuppers. Mr. Torres said that the Respondent tried to correct the scuppers to Complainant’s satisfaction. 24. Mr. Torres testified that Mr. Marx agreed to the type of flashing that Respondent installed around Complainant’s chimney. Mr. Torres said that Respondent performed water tests on Complainant’s roof and was unable to get the roof to leak. 25. Mr. Torres reviewed the June 24, 2014 written Directive and testified that Respondent complied with the terms of the written Directive. Mr. Torres acknowledged that Respondent did not install new scuppers. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[9] 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.[10] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[11] Investigator Pennington stated that approximately two and one-half hours after he completed a compliance inspection at Complainant’s residence, Complainant contacted him and said the roof was leaking. Investigator Pennington said that he returned to Complainant’s residence and that he observed that the roof was leaking in several areas. Investigator Pennington reviewed photographs of Respondent’s work on the scuppers and said that Respondent failed to correct the scuppers as required by the written Directive. Mr. Marx credibly testified that KNC Contracting Inc. was contracted by Complainant’s homeowner’s insurance company to perform a detailed inspection of the roof installed by Respondent. Mr. Marx stated that the initial estimate was revised and increased due to the continued leaking and water damage caused by the leaking roof installed by Respondent. Mr. Marx credibly testified that the roof installed by Respondent on Complainant’s residence was leaking and causing water damage in several different locations. Complainant established by a preponderance of the evidence that the roof installed by Respondent on his residence leaked in several areas. Complainant established by a preponderance of the evidence that Respondent failed to comply with the terms of the Registrar’s written Directive issued in this matter. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR-42. 181190-D of Respondent shall be suspended for five (5) days. It is further recommended that Respondent shall pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent 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 Respondent’s contractor’s licenses 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 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 five days from the date of the certification. Done this day, December 8, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] This classification allows the licensee to apply or install weatherproofing (i.e. asphaltum, pitch, tar, felt, glass fabric, or flax) or roof accessories (i.e. flashing, valleys, gravel stops, or sheet metal) as required for the licensee to install or repair: 1. Roof tile 2. Shingles 3. Shakes 4. Slate 5. Metal roofing systems 6. Urethane foam 7. Roof insulation or coatings on or above the roof deck. This classification allows the licensee to replace up to three sheets (96 square feet) of plywood on the roof substrate; and install new or replace existing skylights where it does not require changes to the roof framing or roof structure. [2] See Complaint with attachments in electronic file. [3] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. 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)(22) provides as follows:

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. [5] See Hearing Transcript at 21:00-21:39. [6] See Complainant’s Exhibit 4 (Photographs). [7] See Complainant’s Exhibits 7 and 8. [8] See Complainant’s Exhibit 8. [9] See A.R.S. § 32-1154(A). [10] See A.A.C. R2-19-119. [11] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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