ALJDEC decisions subject to certification as final

2014A-2472-ROC · Registrar of Contractors · 2016-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2016 APPEARANCES: Steven Latham, Complainant; Joseph Gardner, Respondent’s representative; Roy Guthrie, witness; Frank Grochocki, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having heard the evidence and testimony in this matter and having considered the record, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. FINDINGS OF FACT 1. Complainant hired Respondent to reroof his home, including a provision in the proposal that Respondent would “Remove B.U.R.[1] roof to wood deck and inspect for any bad wood replacement for additional cost of $1.00 per sq ft.” and apply a fiber glass base and solid mop 2 layers of fiber glass ply. The proposal also provided for 2 layers of fiber glass base on the parapet wall “and solid mop,” sealing of all vents, pipes and projections, one coat of non-fiber emulsion, 2 coats of elastomeric white roof coating, sealing the metal carport where it attached to the house on the west side[2], and clean up.[3] 2. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent failed to remove the roof down to the wood deck because patches showed through the coating. He also alleged that the “Midwest boxes” had been kicked over, the “AC condensation and cooler lines [were] all broken, the cool coat was peeling and the storage roof was never done.[4] 3. A hearing was set to consider the complaint at the Arizona Office of Administrative Hearings, an independent agency authorized to conduct hearings in contested matters arising out of State regulation. 4. At the hearing, Registrar of Contractors Inspector Frank Grochocki testified that he inspected the roof and found that the roof was new with a new white coat and it appeared to have been replaced. He issued a Directive from the Registrar on September 24, 2014 that directed Respondent to correct by appropriate means some peeling of the cool coat in several areas.[5] He testified that Respondent took no action in response to the directive. 5. Complainant testified that his tenant was at the home and told him that there was never a truck there to haul away the old roofing material. He also said Respondent never advised him to replace any wood. He said the roof leaked after the job was complete, and he offered a small claims court judgment of $3,500.00 against Respondent for a leaking scupper. 6. Complainant’s witness, Roy Guthrie, testified that the photos in the file showed there was no flashing on the west side of the house, as called for in the proposal.[6] He said the photos show deteriorated wood,[7] a box that had been tipped over that had not been replaced properly,[8] a Midwest box that wasn’t put back where it was supposed to be,[9] the roof of the carport that was not roofed,[10] an area looking over the carport where he said the “flashing was coming up” under the cool coating,[11] old patches showing under the cool coating,[12] a Midwest box tipped over and not replaced,[13] a missing wire from the air conditioner where he said the copper was gone,[14] some conduit that was propped up with a brick that he said should have been anchored properly,[15] and another Midwest box that wasn’t secured.[16] Mr. Guthrie testified that he is not a licensed roofer but he is a handyman and he had done some of the patching on the roof himself. 7. Joseph Gardner, Respondent’s representative, testified that the flashing was not in the contract but someone wrote it on the proposal in pen later. He said the home is very old and Complainant’s photos were taken two years after the work was done and there is no way to know who else had been on the roof in the meantime. He said he did the work that was in the contract (proposal) and the shed was not in the agreement. He said Respondent did correct the work and sent the Registrar of Contractors and explanation of what had been done. He said he understood that there was some leakage but it had been taken care of. He said Respondent doesn’t steal copper and they put everything back. He said this was the only complaint they’ve had in 7 years. He said Complainant sued Respondent in small claims court and got a judgment for $3,500.00 because a continuance had been granted and Respondent did not get notice of the new hearing time. 8. In rebuttal, Complainant testified that Respondent’s representative authorized adding the carport on the proposal. He said he father got sick about that time and he’d gone out of state to be with him. He said no one saw Respondent’s truck haul away the roofing material, so it could not have been removed. 9. Regarding his small claims court case, Complainant said that he’d obtained a continuance on the case and the new hearing date was sent to Respondent’s address. 10. Complainant stated that a scupper leaked and it has cost him over $3,600.00 so far. He offered more photos of the repairs that Complainant had done.[17] Complainant also offered a copy of the judgment against Respondent.[18] CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) and (22) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 5. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. As of the time of this writing, Respondent’s license is noted to be current on the Registrar of Contractors website. 6. In this case, Complainant has not shown that Respondent agreed to seal the metal carport or install flashing because the proposal contains only a handwritten entry that might be considered this item and it is not initialed by a representative from Respondent. Complainant has not shown that the deteriorating wood shown in Exhibit 2 is part of the contract because it is part of a frame that is holding the air conditioner and it does not appear to have ever been covered by any roofing material at any time. Complainant has not shown that Respondent failed to remove the built up roof. Inspector Grochocki inspected the roof and found that the old roof had been removed. A built-up roof would have gravel on it, and no gravel was in evidence under the pictures of cool coating. While Respondent may have left the patches on the roof, this does not mean that the old roof was not removed or that Respondent did not inspect for rotting wood. Complainant did not establish that Respondent failed to clean up after the project or that Complainant stole anything because the condition of the roof was not disclosed until long after the project had been completed. Complainant did not establish that Respondent’s work was the cause of any leaking in the home. Complainant did establish that there were areas where the cool coating was peeling. 7. Respondent’s representative did not establish that the cool coating was repaired because, although he testified that corrective work was done, he acknowledged that he was not the one on the job and there was no other evidence to confirm that corrective work had been done. 8. In this case, the Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3) and (22) when the cool coating it applied peeled and was not corrected.

RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s License Number CR42.259660-D be suspended for one day.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, February 17, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Built Up Roof. [2] This provision is written on the proposal by hand and initialed by Complainant but not by Respondent. [3] See Intake Complaint Submittal1.pdf under REQHRG in the electronic case file. [4] Ibid. [5] See CorrectiveWorkOrder1.rtf under REQHRG in the electronic case file. [6] Exhibit 1. [7] Exhibit 2. [8] Exhibit 3. [9] Exhibit 4. [10] Exhibit 5. [11] Exhibit 6. [12] Exhibit 7. [13] Exhibit 8. [14] Exhibit 9. [15] Exhibit 10. [16] Exhibit 11. [17] Exhibits 12, 13, 14, and 15. [18] Hereby designated as Exhibit 16.

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