ALJDEC decisions subject to certification as final

2015A-3221-ROC · Registrar of Contractors · 2016-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2016 APPEARANCES: Lorna Ann Spencer, Esq. (Complainant) appeared on her own behalf. Fernando’s Remodeling, LLC (Respondent) was represented by its owner, qualifying party and authorized representative, Fernando Arzola. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant is the owner/occupant of a residence located at 914 West Glenrosa Avenue, Phoenix, Arizona 85013. 2. Respondent holds Arizona Contractor’s License Nos. 216798 and 292430. 3. In 2013, Complainant hired Respondent to construct and roof a new addition to her home and reroof an older portion of the home. After the first rain, Complainant noticed leaks in the new addition and informed Respondent. Respondent returned to add foam to the roof, but the roof of the addition leaked again. Respondent attempted additional corrections to the roof, but further rains caused the new roof on the older portion of the roof to open up, leading to additional repairs by Respondent. Complainant remained concerned that Respondent had not corrected all of the issues with her home and roof. 4. On July 27, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work when roofing both a new addition and the older portion of her home, leading to leaks. The complaint also alleged that Respondent sloppily installed windows, left plumbing issues unresolved and improperly installed an exterior bracket that was rusting. 5. The Registrar assigned investigator Matt Gunstra to investigate the complaint. Gunstra testified that he arranged to perform an inspection on September 17, 2015, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Gunstra indicated that at the time of an inspection, he found a number of problems with how the Respondent installed the roof on Complainant’s house and addition, any one of which could have led to leaks and damage to the interior of the home. Gunstra also substantiated plumbing issues with the master bathroom tub faucet and noted the rusting exterior bracket. All told, Gunstra substantiated five of seven issues raised in the complaint. 6. On September 18, 2015, Gunstra sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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. Flat roof section of new construction has leaked causing water damage to ceilings, walls, door, trim, and carpet. Source of leak related to substandard work and resulting damage to be repaired by appropriate means. 2. Modified bitumen roofing is lapped incorrectly on cricket and flat roof section and has peeling/curling seams[.] 3. Parapet wall is missing flashing/counter flashing at flat roof sections and crickets[.] 4. Stucco over roof sections at cricket and parapet walls does not have required weep screed in sections as required by IRC R703.1.7[.] 5. Flashing improperly installed at parapet wall over flat roof. Exposed foam can be seen in corner. 6. Flashing over rear trellis attachment to house is not completely sealed and water tight[.] 7. Re-shingled roof section of existing construction has leaked in the office causing water damage to ceiling. Source of leak related to substandard work and resulting damage to be repaired by appropriate means. 8. Roof vents are improperly installed and lapped incorrectly under the shingles[.] 9. Shingled roof section has multiple unsealed exposed nail heads[.] 10. Improper use of mastic to seal roof penetrations. Newly installed shingles as a part of a tear off roof replacement require pipe boots and/or flashing at penetrations. 11. Flashing at solar light tubes incorrectly installed/lapped on roof. Mastic improperly used as repair. Ceiling damaged by previous leaks. 12. Improper use of modified shingles as ridge cap[.] 13. Modified bitumen roofing over cricket has large wrinkle across it. Improperly applied. 14. Replacement windows have poorly finished drywall around the openings. Corner treatment does not match existing, i.e. square instead of radius. 15. Master bathroom tub spout not installed in an appropriate manner[.] 16. Steel bracket at rear trellis to house attachment point is rusting. Interior of bracket not appropriately sealed to prevent rust and poorly sealed to prevent water intrusion. Stand for AC unit condensate line is not installed in a permanent manner. Condensate line does not have positive drainage.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

7. The Directive stated that the above work had to be completed by 5:00 p.m. on October 17, 2015. Gunstra testified, however, that Respondent was given more time to make repairs after finding a mold issue when it opened up the wall of Complainant’s master bedroom. 8. On November 30, 2015, Complainant advised Gunstra that she needed to move her complaint forward and requested that he schedule a compliance inspection. 9. On December 3, 2015, Gunstra performed a compliance inspection at Complainant’s home. He found that Respondent had not completed item numbers 1, 4, 8, 15, and 16 on the Directive. He noted that Respondent had attempted to repair all items but had not done so to a workman-like standard or to Complainant’s satisfaction. Gunstra forwarded the matter to the Registrar’s legal department for review. 10. On January 25, 2016, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.” 11. Philip Reina testified that he was the architectural project manager on Complainant’s residential remodeling project who drafted the plans and pulled permits for the project. Reina indicated that he gave Respondent the plans and that the parties spoke about the plans. Reina stated that Respondent failed to follow the plans and omitted crickets at the parapet wall. He believed that the leaks occurred due to the lack of crickets, lack of slopped portions on the roof and Respondent’s change of the pitch of the roof. 12. On October 13, 2014, Reina sent Respondent a letter detailing the problems with the roof and requested a complete reroofing. That reroofing failed to address on all leaks and additional reroofing was done in November 2014. Despite these efforts, a flap opened up in the original portions of the home in January 2015, leading Complainant to file a complaint with the Registrar. 13. Fernando Arzola testified and acknowledged that the initial installation of the roof had workmanship issues. He maintained that Respondent has always been willing to fix the issues and even paid another roofing company to fix the roof, but Complainant was never satisfied. He agreed that the leaks occurred due to workmanship issues with the way Respondent installed the roof. He noted that the repairs became delayed once mold was found, especially because Complainant insisted on a zero mold reading even though she had a dog that was likely responsible or the presence of some mold. He indicated that Respondent did not have enough time to complete repairs and that Respondent’s access to Complainant’s home was limited by her busy schedule. 14. Fernando “Andy” Montes testified that he is a superintendent for Respondent who became involved with the project after Complainant complained of leaks. He noted that Respondent’s work looked beautiful, but the leaks started to cause everything to go wrong. He recalled Respondent finding mold and performing multiple mold tests. Montes said Respondent attempted to correct all items on the Directive, but could not do so because Complainant would not allow Respondent back in her home. Montes indicated that Complainant delayed repairs to her roof by insisting that only a licensed roofer perform them. He also said that the tub spout part had to be special ordered and Respondent could never find it. He believed Respondent had correctly addressed the exterior metal bracket. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established Respondent performed substandard work in Complainant’s home, including, but not limited to, installing the roof in such a manner as to permit leaks, poorly finishing drywall around replacement windows, improper installation of master bathroom tub plumbing and poor installation of an exterior bracket permitting rust to occur. Thus, Complainant established Respondent’s work on the items specified in the Directive was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3).[1] 4. An A.R.S. § 32-1154(A)(22) violation is warranted given that Respondent did not complete corrective work on all of the items specified in the Directive. Montes and Arzola both admitted that Respondent did not address certain issues in Complainant’s home. Their testimony regarding running out of time is not credible given that they had known of these issues for months if not years and chose not to fix them while awaiting resolution of the mold problem. A contractor must be afforded access and an opportunity to perform corrective work to comply with a Directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(22).[2] The record establishes that Complainant afforded Respondent access to her home on numerous occasions to address the items contained in the Directive. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 216798 and 292430 for a period of five (5) days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 final 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 40 days from the date of that certification.

Done this day, May 4, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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.” 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.” [2] 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.” Emphasis added.

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