ALJDEC decisions subject to certification as final

2015A-3517-ROC · Registrar of Contractors · 2016-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2016 APPEARANCES: Robert Bartlett, Complainant; William Phillips, Respondent’s representative; Tim Pennington, Registrar of Contractors Investigator; Richard Jamroz and Roy Aguayo, witnesses; Derek Martindale and Tim Montgomery, observers ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Registrar of Contractors Investigator Tim Pennington testified that this matter was referred to the Registrar of Contractors by the Attorney General’s Office on August 14, 2015. On September 8, 2015, Investigator Pennington conducted a job site inspection of the Complainant’s home and could not determine whether Respondent’s work of installing a roof had caused a leak and damaged the ceiling and some drywall, as Complainant alleged. The reason Investigator Pennington could not determine whether a violation had taken place was because Complainant had already had the damage repaired. On September 8, 2015, Investigator Pennington dismissed the case, but he opened it back up by order of his supervisor, ostensibly because it was Complainant’s burden to establish the alleged poor workmanship by Respondent. 2. Complainant testified that the work was done in February of 2015 and water damage was noticed on July 30, 2015. Complainant said he called a plumber who said he didn’t know where the leak was coming from. He said the plumber cut a hole in the ceiling to look for the leak. Then, according to Complainant, they determined that the water was coming from the “water and electrical connections,”[1] which was coming down through the roof where those connections existed. He said Respondent came the next day to look at the problem. Complainant also called his insurance company who called in another company to do remediation. 3. Complainant testified that on August 10, 2015 he “filed a formal consumer complaint form required by the Registrar‘s office.”[2] He said the repairs were completed by September 29, 2015 and those workers were paid by Complainant’s insurance company. However, Complainant also said that the work, including some things that had to be redone under warranty, were completed before the Registrar of Contractors Investigator arrived, which was on September 8, 2015.[3] 4. Complainant testified that he discovered that Respondent had not replaced the pipe jacks on the roof, which surprised him. 5. Respondent’s representative testified that Respondent installed a new roof for Complainant. He stated that he was out of town when Complainant called the first time but his worker “Sam” went to the home the next day. He said Complainant showed Sam the hole in the ceiling that the plumber had cut a hole. He said Sam sealed some areas in case the roof Respondent installed was leaking, but Complainant never called Respondent back to say there was more damage. He said Complainant called several times wanting him to install a pipe jack, but Respondent is not licensed to install a pipe jack and the cooler on Complainant’s roof had never had a pipe jack to begin with. Ultimately, Respondent rigged a sheath on August 12, 2015 that settled that problem. 6. Respondent’s representative stated that Complainant never informed him of any stains on the ceiling. Respondent’s representative said he has a contractor he uses to repair any leaks but Complainant did not give him the opportunity and the Registrar of Contractors Investigator never had an opportunity to see the problem before the repairs were done either. He said when the Investigator went to Complainant’s home to do the job site inspection, Complainant said the problem had been fixed and he did not know why the Investigator was there. 7. Respondent’s representative stated that he never had the opportunity to see the leak or fix it.[4] He said Complainant’s insurance company arranged to repair the damage but then it billed him for over $8,000.00. He said he couldn’t understand why Complainant would call his insurance company when the roof was still under warranty. He said Complainant kept saying the roof leaked because there wasn’t a pipe jack, but this could not be true because there had never been one. He also said his contract[5] states that Respondent would not be responsible for work done by other contractors, that Respondent was not liable for improperly installed water and electric lines, and that the customer must notify Respondent of any required repairs. Respondent’s representative also argued that, even if he were to be held liable in this matter, he should only be responsible for actual damages, but Complainant had his entire ceiling refinished rather than simply repairing the comparatively small area in the dining room that was stained.[6] 8. Complainant testified by way of rebuttal that the leak occurred during a heavy monsoon and Respondent’s entire company was on vacation when it occurred. He said it would have been irresponsible of him not to fix it as soon as possible. Complainant also pointed out that the contract states Respondent is allowed to raise all jacks, etc. Complainant asked how Respondent could have sealed the roof if they did not do that. 9. Respondent’s representative stated that he had been the only one on vacation when Complainant first called on July 30, 2015. He also said Respondent does raise pipe flashings to seal a roof but this has nothing to do with a pipe jack. 10. Complainant alleged that Respondent must not have reinstalled the cooler when they did the roof and this caused the leak because if the roof was properly sealed, a leaking cooler would not have mattered. 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. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, § 5 (1960). Proof by preponderance of the evidence “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. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) as it refers to A.A.C. R4-9-108. 4. 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 workmanship standards in the projects they undertake. A.A.C. R4- 9-108. Therefore, if Complainant established by the greater weight of the evidence that Respondent failed to meet workmanship standards, it would be a violation of A.R.S. § 32-1154(A)(3). 5. In this case, Complainant has not established that Respondent committed a violation because he did not establish that the leak was caused by Respondent’s initial work or that the problem continued after Sam went to the home and added more sealant. In fact, Complainant stated that the leak came from the water and electrical connections. Complainant also failed to comply with the contract he had with Respondent by alerting Respondent to any and all issues the he had with the work Respondent did. 6. Complainant also did not establish that the repairs done on Complainant’s home were limited to the actual damage from the leak. Complainant’s insurance company sent contractors to remedy the problem without investigating whether the roof was under warranty and without allowing Respondent to inspect the issue; therefore, Complainant has not established that Respondent should be liable for any part of the insurance company’s attempt to make Respondent reimburse its expenditures. RECOMMENDED DECISION Because Complainant failed to meet his burden of proof, it must be recommended that the complaint in this matter be dismissed in its entirety.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be the date of certification. Done this day, May 13, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Hearing Record 20:00 to 20:15. [2] Hearing Record 22:00 to 22:15. [3] Hearing Record 22:25 to 23:30. [4] More importantly, Respondent did not have an opportunity to determine where the leak was coming from. [5] Exhibit 1, page A-1. [6] As noted above, Respondent was not shown the stains and did not see a photo of them until after the repairs had been completed.

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