ALJDEC decisions subject to certification as final

2015A-1326-ROC · Registrar of Contractors · 2016-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2016, at 8:00 a.m. APPEARANCES: Jim Ahern (hereinafter “Complainant”) was represented by his attorney, Denise Troy, Esq. T and S Roofing LLC (hereinafter “Respondent”) appeared through its qualifying party and member, Timothy A. Worth. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. § 32-1154(A)(3) 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 Respondent is the holder of License No. CR42.272850-D issued by the Registrar. Respondent’s License is current. This is a residential matter in which on or about February 4, 2015, Complainant entered into a contract with Respondent for the performance of roofing work and the application of oil to the Complainant’s patio ceiling at Complainant’s residence at 130 E. Glendale Ave, Phoenix, Arizona (hereinafter the “residence”) for the sum of $10, 093.80. During the course of construction the Complainant became increasingly dissatisfied with Respondent’s workmanship and on November 30, 2015, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of the residence. During the onsite inspection the Complainant and the Respondent’s representative had an alleged physical confrontation. The assigned Investigator stopped the onsite inspection and the Respondent contacted the police. No written directive was issued in this matter. On May 21, 2015, the Registrar issued a Citation for an Alleged Violation of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: 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).[1]

The assigned Registrar Investigator, Timothy Pennington (hereinafter “Investigator Pennington”) testified that he performed the initial jobsite inspection at the residence on April 27, 2015. Investigator Pennington stated that during the onsite inspection the Complainant and the Respondent’s representative argued and had an alleged physical confrontation. Investigator Pennington said he stopped the onsite inspection at that point. Investigator Pennington said that during the onsite inspection he observed that the Respondent’s mortar work on Complainant’s roof was “sloppy” and failed to comply with applicable workmanship standards. Investigator Pennington said that the roof tiles were not properly attached and that the roof tile installation failed to comply with applicable industry standards. Investigator Pennington said that he observed oil stains on Complainant’s back patio floor tiles. Investigator Pennington opined that the oil stains were caused by Respondent’s application of oil to the patio ceiling above the floor tiles.

Investigator Pennington’s testimony is found to be credible. Kathleen Ahern (hereinafter “Ms. Ahern”) testified that she is the owner of the residence. Ms. Ahern stated that she entered into an oral agreement with Respondent for the proper correction of her roof. Ms. Ahern said that the roof had antique roofing tiles from 1926 which were very expensive to replace. Ms. Ahern said that the Respondent represented that it could “re- space” the existing tile so that no replacement roofing tiles would be necessary. Ms. Ahern said that after the roof tiles were replaced by Respondent it was obvious that there was something wrong. Ms. Ahern said that she called her general contractor. The general contractor then inspected the roof and identified problems with the roof to the Respondent. Ms. Ahern said that Respondent agreed to repair the problems with the roof but failed to do so. Ms. Ahern testified that Respondent applied oil to the ceiling of the back patio roof. Ms. Ahern stated that Respondent failed to properly protect the patio tile floor and that the patio tile floor now has extensive oil overspray on it. Ms. Ahern said that the Respondent attempted to correct the overspray problem by power washing the floor tile. Ms. Ahern said that the power washing made the situation worse. Ms. Ahern testimony is found to be credible. Earl Clark (hereinafter “Mr. Clark”) is a licensed contractor. [2] Mr. Clark testified that he had over twenty years’ experience as a roofing contractor. Mr. Clark stated that he inspected the Complainant’s roof. Mr. Clark said that he observed that there were areas of the roofing underlayment that were visible, that the side roofing tiles were not properly fastened, that the roofing tiles were not properly over-laid, that the roof ridge tiles were not secure, that two of the roof tiles were broken, and that one of the roof tiles was missing. Mr. Clark’s testimony is found to be credible. One of Respondent’s employees, Wiley Bateson (hereinafter “Mr. Bateson”) testified that the Complainant wanted to save the original tile. Mr. Bateson said that Respondent informed the Complainant that the tile could be stretched so that no new tiles would be necessary. Mr. Bateson said that Respondent installed a new upgraded 90 pound underlayment on the roof. Mr. Bateson said that Respondent installed plastic coverings over the back patio tile floor before the oil was applied to the patio roof. Mr. Bateson asserted that the Complainant’s furniture was sticky with oil before the Respondent performed any oil work at the residence. Mr. Bateson asserted that Complainant may have caused the oil overspray on the tile floor. Timothy A. Worth (hereinafter “Mr. Worth”) testified that before Respondent entered into a contract with Complainant he observed 12 broken roof tiles on Complainant’s roof. Mr. Worth said that he provided the Complainant two separate bids for Respondent’s work on Complainant’s roof. A higher bid to replace the roof with new roof tiles and a lower bid to correct the roof using the existing roof tiles. Mr. Worth said that the Respondent was not able to finish Complainant’s roof before Respondent was excluded from the jobsite. Mr. Worth testified that all of Complainant’s patio furniture was moved and the tile floor on the back patio was properly covered before Respondent applied any oil to the rear patio ceiling. Mr. Worth stated that there were no oil stain on the back patio floor tile when Respondent left the residence. Mr. Worth said that Respondent could not work with the Complainant because of his personal conflict with the Complainant. Mr. Worth said that the Complainant assaulted him at the residence during Investigator Pennington’s onsite inspection. Mr. Worth acknowledged that there was no written contract for the work that Respondent performed at Complainant’s residence. Mr. Worth said that Respondent was supposed to be paid on a time and material basis. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] 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.[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] Investigator Pennington credibly testified that during the onsite inspection he observed that the Respondent’s mortar work on Complainant’s roof was “sloppy” and failed to comply with applicable workmanship standards. Investigator Pennington said that the roof tiles were not properly attached and that the roof tile installation failed to comply with applicable industry standards. Investigator Pennington said that he observed oil stains on Complainant’s back patio floor tiles. Investigator Pennington opined that the oil stains were caused by Respondent’s application of oil to the patio ceiling above the floor tiles. Mr. Clark credibly testified that he observed that there were areas of the roofing underlayment that were visible, that the side roofing tiles were not properly fastened, that the roofing tiles were not properly over-laid, that the roof ridge tiles were not secure, that two of the roof tiles were broken, and that one of the roof tiles was missing. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that License No. CR42.272850-D of Respondent be suspended for five (5) days. 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, January 29, 2016. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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.

[2]Earl Clark Roofing Co., CR42.058338-D. [3] A.R.S. § 32-1154(A). [4] A.A.C. R2-19-119. [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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