ALJDEC decisions subject to certification as final

2014A-2309-ROC · Registrar of Contractors · 2015-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2015, at 8:00 a.m. APPEARANCES: Papago Springs Home Owners Assoc. (“Complainant”) was represented by Samuel Richardson, Esq.; Albert Glendon Kitchen dba Valley Home Modernizers (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On February 11, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61.204195-D for carpentry, remodeling, and repair to Respondent. Complainant is a homeowners’ association for a condominium complex located at 1819 North 40th Street, Phoenix, Arizona 85008. On or about June 10, 2014, the Registrar received a complaint against Respondent’s license from Complainant’s attorney regarding Respondent’s performance of its contract to repair the roof on Building B of the condominium complex. The Registrar assigned the complaint to its Investigator Matt Gunstra for investigation. Investigator Gunstra performed a jobsite inspection and on October 29, 2014, on behalf of the Registrar issued a Directive to Respondent, requiring it to perform the following corrective work on or before November 28, 2014: Repair or replace roof coating according to manufacturer specifications, building code and industry standards. Asphaltic patching compounds are not permitted for use of foam roofs. Tropical #901 sealant not permitted for use on FLAT SURFACES WITH POOR DRAINAGE OR WHERE PONDING WATER WILL EXIST per manufacturer.

Although Respondent sent a written response to the Directive to the Registrar, it did not comply with the Directive. Complainant’s attorney requested that the Registrar issue a citation against Respondent’s license. On or about May 19, 2015, the Registrar issued a Citation for Alleged Violation of Rule 4-9-108 against Respondent’s license. Respondent filed a timely written answer, denying any violation of workmanship standards. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on September 4, 2015. Complainant presented the testimony of Investigator Gunstra and Robert Herrera, its manager. Respondent submitted one exhibit that consisted of a letter and photographs that had not previously been submitted to the Registrar, testified on his own behalf, and presented the testimony of Richard Marto, a representative of Tropical Roofing Products, the manufacturer of the product that Respondent had applied to the roof. Hearing Evidence Building B in Complainant’s complex has a flat roof. Respondent testified that originally, the roof had been gravel but that at some point in the past, the roof had been foamed. On or about November 21, 2012, Respondent submitted an estimate to repair all cracks and fill some low places, where needed, and to apply two coats of Tropical #901 elastomeric coating to entire roof of Building B for a contract price of $9,870.00. Complainant’s board accepted the estimate. Respondent performed the work and Complainant paid Respondent in full. Investigator Gunstra testified that he researched the manufacturer’s specifications for the product Tropical #901, including the following precautions: This coating is not recommended for areas with inadequate drainage (ponding water) . . . or old roofs that are too brittle and dry. DO NOT APPLY TO FLAT SURFACES WITH POOR DRAINAGE OR WHERE PONDING WATER WILL EXIST.

Investigator Gunstra testified that the roof on Building B was old and brittle, flat, and had low areas with poor drainage where water would pond. According to the manufacturer’s specifications, Tropical #901 was not appropriate for use on the roof on Building B. Investigator Gunstra identified numerous photographs that he had taken of the roof on Building B at his jobsite inspection that showed the following deficiencies: 1. Brown stains on the roof indicated dirt left by recent ponding waters. In some low areas, the coating that Respondent applied was almost gone. Investigator Gunstra testified that the most catastrophic failures of the roof were in the low areas. 2. Extensive patching on the roof showed evidence of water penetration. Investigator Gunstra testified that Respondent said that he had performed patching. 3. Black patching material was coming through the coating, including on the roof vents. Investigator Gunstra testified that Respondent said he used asphaltic material to perform repairs. Investigator Gunstra pointed out that the Registrar prohibits using asphaltic materials to repair foam roofs.[1] In addition, some of the asphaltic patches were “alligatoring.” 4. In numerous areas, the coating no longer adhered to the foam and there was a visible gap between the two layers. 5. Bubbles and blisters had appeared in the top of the elastomeric coating that Respondent applied, which may have indicated the presence of moisture. Respondent testified that his neighbor owned units at Complainant’s complex and was on its board. Respondent testified that the roof had been patched many times and needed to be replaced, but that his neighbor told him that Complainant could not afford to replace the roof. Respondent testified that after he repaired the roof, Complainant had the roof inspected before it approved the final payment to Respondent. Mr. Marto testified that roofs delaminate not because of water, but because of the dirt that is in water. Mr. Marto testified that roofs should be cleaned at least once a year and that some of the deficiencies that Investigator Gunstra identified could have been caused by a failure to maintain the roof. Mr. Marto testified that he had not seen a maintenance record. Mr. Marto testified that some of Investigator Gunstra’s photographs showed bubbling of the underlying foam, not of the Tropical #901 elastomeric coating. Investigator Gunstra testified that when he performed the jobsite inspection, he pressed the bubbling areas to see if the bubbles were in the coating or foam. Most of the bubbling areas involved only the coating. Investigator Gunstra testified that the Registrar requires contractors to repair blisters in a foam roof before they apply an elastomeric coating. Respondent testified that he used Tropical #901 patching compound, not asphaltic patching compound, on the roof of Building B. Respondent testified that every unit in Building B had a different owner and many of the owners were renting their units to tenants. Respondent testified that he saw mesh over vents and was told that there was a rat infestation. Respondent testified that he believed that owners or tenants spread bleach or Drano on the roof of Building B to get rid of the rats. Investigator Gunstra testified that he did not smell anything at his jobsite inspection that would indicate that people were pouring bleach or solvents over the roof. Mr. Herrera testified that the wire meshes were installed over the roof vents after Complainant received a complaint of possible roof rats on its grounds. Mr. Herrera testified that Burns Pest Control installed the meshes over the roof vents and bait stations on the grounds, but that it did not pour poisons over the roof. Respondent testified that his workmen saw a ladder in the closet of the unit under the area where the roof was leaking. Respondent submitted photographs of what he testified were areas where someone had cut out areas of the roof. Respondent testified that he believed the tenants were vandalizing the roof to avoid paying rent. Investigator Gunstra testified that he performed a prehearing inspection on September 3, 2015, that no corrective work had been performed, and that the defects were worse. The roof on Building B showed extensive failures, numerous areas where the coating did not adhere to the substrate, and several areas of standing water. Administrative notice is taken the Registrar’s public website. Respondent’s license is current, in good standing, and has no prior disciplinary history. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] As a general principle in construction, a contractor who performs work on top of a surface accepts the surface. The contractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.[7] Once Respondent undertook to repair the roof on Building B by applying elastomeric coating, he is required to perform the work in a professional and workmanlike manner. He cannot now claim that he did the best he could, but the roof needed to be replaced, and Complainant could not afford to replace the roof. Complainant established that Respondent’s application of Tropical #901 elastomeric coating to Building B did not comply with the Registrar’s or industry standards. Therefore, Complainant established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3),[8] to wit, A.A.C. R4-9-108,[9] in its application of Tropical #901 coating to the flat roof on Building B. A.R.S. § 32-1155(A) requires Respondent to warranty his roof repairs for at least two years, regardless of a homeowner’s maintenance. Respondent did not establish that the roof coating failed due to vandalism or the pouring of solvents or bleach over the roof to get rid of rats. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Albert Glendon Kitchen dba Valley Home Modernizers’ License No. CR61-204195-D shall be suspended for a period of three business days. 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, September 24, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Workmanship Standards for Licensed Contractors at 26 (June 2009). [2] See 32-1101 et seq. [3] 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). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] No Arizona authority addresses the Registrar’s policy that a subsequent contractor who accepts a surface prepared by an earlier contractor also accepts full responsibility for the outcome. The policy is supported by case law from other jurisdictions. See generally cases cited at “Duty of Contractor to Warn Owner of Defects in Subsurface Conditions,” 73 A.L.R.3d 1213 (1976). A contractor who knew or should have known of a defect in the surface does not perform construction in a workmanlike manner if the contractor fails to notify the owner of the defect and the construction later fails due to the defective surface. See, e.g., Parker v. Thornton, 596 So. 2d 854, 858 (Miss. 1992); Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975). The principle is based on common sense and a need for fair dealings between contractors and property owners:

For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. . . .

Wurst v. Pruyn, 202 So. 2d 268, 271-72 (La. 1967) (citation omitted). [8] 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.” [9] A.A.C. R4-9-108 which 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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