ALJDEC decisions subject to certification as final

2014A-3216-ROC · Registrar of Contractors · 2016-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2015, at 10:00 a.m. and February 1, 2016, at 8:00 a.m. APPEARANCES: Brad Fah (“Complainant”) appeared on his own behalf; Deck Masters LLC (“Respondent”) appeared through John Marion (“Mr. Marion”), its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On May 19, 2008, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-3.245494-R for residential general remodeling and repair contracting to Respondent. 2. On or about August 11, 2014, Complainant filed a complaint with the Registrar against Respondent alleging that the shingles were coming off the roof that Respondent installed pursuant to its October 17, 2012 contract on Complainant’s vacation home at 1305 E. Wildcat, Munds Park, Arizona 86017. 3. The Registrar assigned the complaint to its Investigator, Steve Philpott (“Investigator Philpott”), for investigation. Investigator Philpott performed several jobsite inspections and issued several directives to Respondent to perform certain repairs, as further discussed below. 4. Complainant eventually requested a hearing. On July 15, 2015, the Registrar issued a Citation against Respondent’s license, charging cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 5. Mr. Marion filed a timely written answer to the Citation, affirmatively alleging that Respondent had fully complied with the Registrar’s directives, that the Coconino County Building Department’s inspector had approved Respondent’s installation of the roof, and that Respondent could not perform any further repairs because Complainant refused to sign a contract that Respondent’s workers’ compensation provider required for coverage. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. An evidentiary hearing was held on December 14, 2015, and February 1, 2016. Complainant submitted ten exhibits, testified on his own behalf, and presented the testimony of Investigator Philpott. Respondent submitted five exhibits and presented the testimony of three witnesses: (1) Mr. Marion; (2) Steve White (“Inspector White”), who was the lead Building Inspector for the Coconino County Building Department and inspected the roof at issue several times; and (3) Tammy McCoy (“Ms. McCoy”), the owner and manager of TNC Supply in Flagstaff, which provided the shingles that Respondent installed on Complainant’s house. Hearing Evidence 7. Complainant’s vacation house is an A-frame with a steep roof. In October 2012, Respondent contracted to reroof the house using brand name Elk Timberline asphalt dimensional shingles manufactured by GAF.[1] 8. Investigator Philpott testified that on July 23, 2014, he performed a Building Confidence inspection and saw that shingles were falling off and that the most likely cause was that the shingles were not nailed properly. 9. Investigator Philpott testified that he performed the first jobsite inspection on September 3, 2014, when he saw that the shingles were continuing to come loose and falling off the house. 10. Investigator Philpott testified that because the Flagstaff area is a high wind area, the Coconino County Building Department requires six nails in each shingle and that GAF requires that the nails be placed in a certain pattern. Investigator Philpott testified that if the shingle has been installed with more than six nails or five nails in incorrect locations, the shingle needs to be replaced. 11. An installer’s failure to follow GAF’s nailing pattern voids the manufacturer’s warranty for the shingles. 12. At the September 3, 2014 jobsite inspection, Investigator Philpott lifted several shingles from four randomly selected locations and saw that all of the shingles were “high-nailed.”[2] On September 15, 2014, Investigator Philpott on behalf of the Registrar issued a directive to Respondent, requiring it perform certain corrective work on or before September 30, 2014, in relevant part as follows: Complainant’s allegation: “Shingles coming loose due to workmanship (not nailed per [manufacturer’s] instruction)”

The property owner lifted shingles at random locations on the NW, SW, NE and SE sections of the house revealing the nail placement does not comply with the [manufacturer’s] guidelines. Investigator has determined the singles revealed were not nailed properly.

The respondent is to correct the condition in an appropriate manner in accordance with the Arizona Registrar of Contractors Workmanship Standards, GAF ELK Shingles- Timberline_Application_Instructions and in accordance with any requirements set forth by the Coconino County Building Official.

13. Respondent initially corrected only the shingles that Complainant and Investigator Philpott had lifted. On October 2, 2014, Investigator Philpott issued an amended directive that provided in relevant part as follows: The original Directive is amended for clarification. It appears there may be confusion by the respondent as to the required action. The property owner lifted shingles at random locations on the NW, SW, NE and SE sections of the house to show consistency in the evidence that the shingles are not nailed properly. 100% of the shingles checked at both the informal and formal site investigation reveal the nail placement does not comply with the [manufacturer’s] guidelines. The method the [respondent] has used to correct the shingles does not meet February 2009 Arizona Registrar of Contractors Workmanship Standards – Roofs #4 on page 23 “Excessive nailing (more than six fasteners per shingle) should require shingle replacement.”

The respondent is to correct the condition of the entire roof in an appropriate manner in accordance with Arizona Registrar of Contractors Workmanship Standards, GAF Elk Shingles- Timberline_Application_Instructions and in accordance with any requirements set forth by the Coconino County Building Official.

14. Respondent contacted Coconino County Building Department. On October 16, 2014, Inspector White inspected the roof. Neither Complainant nor Investigator Philpott attended the October 16, 2014 inspection. Inspector White issued an Inspection Notice that provided in relevant part as follows: 2. Mr. Philpott’s complaint documented 7 shingles that came loose after a November roofing contract. It appears that all shingles that came loose were directly associated with the position of roof jacks provided for crew safety. It is common knowledge in the area that shingles applied in the winter may not seal until spring. This particularly roof is in a heavily treed area of Munds Park. . . . .

5. All shingles tested by inspector (SW) were sealed to the roof and were applied according to (GAF) manufacturer’s technical bulletin R-2011-115

6. Some of the cap shingles appear to be loose. All should be checked and resealed. It should be noted that shingles from both side of the ridge weave over ridge and cap is mostly decorative.[3]

15. Inspector White testified that he did not inspect the nail pattern when the roof first passed the County inspection. Inspector White testified that on October 16, 2014, he also did not inspect the nail pattern on the shingles because the shingles were sealed down and he did not want to lift them. Inspector White testified that his remarks in his report about the roof jacks and the shingles having been nailed to GAF’s specifications were based on Mr. Marion’s statements. 16. Investigator Philpott testified that on November 5, 2014, he sent the complaint to the Registrar’s Legal Department, but that the Legal Department closed the complaint because the roof had passed the Coconino County Building Department’s inspection. 17. In the meantime, shingles continued to fall off Complainant’s house in Munds Park. Complainant contacted Inspector White, who again inspected the roof on May 4, 2015. On May 7, 2015, Inspector White wrote a letter to Complainant, stating that two shingles that had fallen off the roof appeared to have been high-nailed, three shingles were dropping below their adjacent row line and appeared to be falling off, and one repair shingle did not appear to have been nailed correctly.[4] Inspector White advised Complainant to contact the Registrar. 18. On May 5, 2015, Complainant filed an amendment to the complaint that he had filed with the Registrar, stating that the shingles were still coming loose due to not having been nailed to the manufacturer’s specifications. Inspector Philpott testified that the Registrar reopened Complainant’s complaint based on new evidence of Respondent’s workmanship deficiencies. On May 6, 2015, Investigator Philpott performed another jobsite inspection and issued a directive on Complainant’s addendum that required Respondent to correct shingles that had not been nailed per the manufacturer’s instruction on or before May 22, 2015. 19. Respondent presented Ms. McCoy’s testimony that since GAF purchased the Elk Timberline asphalt shingle brand, its quality had deteriorated and that most contractors had switched to another brand. Mr. Marion initially testified that shingles were coming off Complainant’s roof solely due to a manufacturing defect. After Complainant showed as demonstrative evidence numerous shingles that had fallen off the house that showed that they had been high-nailed and that the nail pattern did not follow GAF’s specifications, Mr. Marion testified that shingles from other manufacturers could be nailed in ways that did not comply with specifications but that the shingles would stay on roofs. 20. Mr. Marion argued that the shingles that came off were the same ones that Investigator Philpott and Complainant had lifted up to check the nailing pattern. Complainant submitted a diagram that showed that none of the shingles that had fallen off the house had been lifted up, but that all came from different locations on the roof.[5] 21. Complainant submitted evidence that the high-nailed shingles do not comply with the Registrar’s, the manufacturer’s, or Coconino County’s standards.[6] 22. Mr. Marion testified that because he is 60 years old, it is not safe for him to be on Complainant’s roof, but that he is the only employee of Respondent who would have workers’ compensation insurance to work on the roof. On May 27, 2015, Respondent sent a settlement offer, enclosing a contract that Mr. Marion testified Respondent’s workers’ compensation carrier, Traveler’s, required to provide coverage for Respondent’s employees to repair the roof.[7] 23. Complainant testified that he did not sign the contract because it provided that Respondent would provide a warranty for the repairs for only two years, rather than fifteen year shingle warranty provided in the original contract. 24. Administrative notice is taken of the Registrar’s public website. On January 29, 2016, Respondent’s license was current and in good standing. This appears to be the only complaint pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[8] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[9] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[10] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[11] 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.”[12] 4. Complainant established by a preponderance of the evidence cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A) (3),[13] namely A.A.C. R4-9-108,[14] based on Respondent having high- nailed a substantial number of shingles on Complainant’s house, in violation of the Registrar’s, Coconino County’s, and GAF standards. 5. Respondent did not establish that the primary cause of the shingles falling off of Complainant’s house was a manufacturing defect. Even if a manufacturing defect was present, Respondent’s high nailing of the shingles in an incorrect nail pattern voided any manufacturer’s warranty that GAF would have otherwise have been obligated to provide. 6. Complainant also established by a preponderance of the evidence cause to discipline Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(22).[15] A contractor cannot require a homeowner to enter into a new contract that alters the terms of the parties’ original agreement as a condition of performing warranty work. In addition, Investigator Philpott’s May 6, 2015 directive required Respondent to comply by May 22, 2015, but Respondent did not send the purported settlement offer to Complainant until May 27, 2015, when the time had already run for compliance. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. B-3.245494-R of Respondent Deck Masters LLC shall be suspended for a period of three calendar days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, 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 Respondent tenders payment of any outstanding prior civil penalty. 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, February 8, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Respondent’s Exhibit E. [2] The Registrar’s electronic file contains GAF’s May 6, 2011 Technical Advisory Bulletin, which provides in relevant part: Shingles nailed too high above the butt (bottom) edge of the shingles or above nailing guideline are considered as high nailed shingles.

GAF shingles must be fastened… 6” from the bottom of the metric sized shingles (13-1/4” x 39-3/8”) and 5-5/8” from the bottom of the English sized shingles (12” x 36”). Some variation of this dimension is to be expected as a practical matter. Of primary importance, however, is that the fasteners penetrate through the double area at the nail line on laminated shingles. . . . . High Nailing can result in nailing through the self-seal strip, which unless the single is so designed, can adversely affect the shingle’s ability to seal. If the shingles do not seal as a result of high nailing, the wind resistance of the shingle installation is reduced; making the singles more likely to break off in the event of high winds. Nails in the sealant area also allow the sealant to become oxidized or contaminated so the shingles will never seal properly.

Insp Correspondence From Resondent9.pdf; see also Insp Action Letters6.pdf at 2 (GAF basic 4-nail pattern and enhanced 6-nail pattern). [3] Complainant’s Exhibit 1; Respondent’s Exhibit A. [4] See Insp Correspondence From Complainant2.pdf. [5] See Complainant’s Exhibit 9. [6] See Complainant’s Exhibit 2. [7] See Respondent’s Exhibit B. [8] See A.R.S. § 32-1154(A). [9] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [10] See A.A.C. R2-19-119(B)(2). [11] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [12] Black’s Law Dictionary at page 1220 (8th ed. 1999). [13] 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.” [14] 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.” [15] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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