ALJDEC decisions subject to certification as final

2015A-4970-ROC · Registrar of Contractors · 2016-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: July 7, 2016, at 3:00 p.m. and August 4, 2016, at 10:00 a.m. APPEARANCES: James Reed Ahern (“Complainant”) was represented by Denise H L J Troy, Esq., Dickinson Wright PLLC; T and S Roofing LLC (“Respondent”) appeared through Timothy Allen Worth (“Mr. Worth”), its qualifying party/member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background 1. On or about June 24, 2011, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR42.272850-D for dual roofing to Respondent. 2. On or about February 2, 2015, Respondent contracted with Complainant to perform certain roofing work at Complainant’s house at 130 E. Glendale Ave., Phoenix, Arizona 85020. Shortly thereafter, Respondent contracted to apply oil to the cedar beams and latillas on the patio ceiling of Complainant’s house. 3. On March 25, 2015, Complainant filed a complaint with the Registrar that Respondent performed poor work on the roof, including the mortar work and tile installation, and had stained the patio tiles beneath the patio ceiling with oil. The Registrar designated Complainant’s complaint as Case No. 2015-1326 (“the first complaint”). 4. The Registrar assigned the first complaint to its Investigator, Timothy Pennington (“Investigator Pennington”), for investigation. On April 27, 2015, Investigator Pennington performed a jobsite inspection and issued a Directive in the first complaint that required Respondent to repair the roof and the stained floor tiles on or before May 14, 2015. 5. On December 2, 2015, Complainant filed a second complaint with the Registrar, alleging additional deficiencies in the roof and that the “chemical used to ‘oil’ the decorative wooden ceiling has [dried] out the wood that is now turning white & spots are appearing.” The cost of the entire job was $10,093.80, including the roof and the patio ceiling. The Registrar designated the second complaint as Case No. 2015-4970. 6. In the meantime, on January 14, 2016, Complainant’s first complaint in Case No. 2015-1326 proceeded to an evidentiary hearing before Administrative Law Judge (“ALJ”) M. Douglas of the Office of Administrative Hearings (“OAH”), an independent state agency, as OAH Case Number 2015A-1326-ROC. 7. Investigator Pennington performed a jobsite inspection on Complainant’s second complaint and on January 20, 2016, issued a Directive in Case No. 2015-4970 that required Respondent to correct by appropriate means the cedar beams and latillas of the patio ceiling on or before 5:00 p.m. on February 1, 2016. Investigator Pennington’s January 20, 2016 Directive noted that “[p]ainting and sealing the ceiling of the patio area is out of scope of your license[], either obtain the proper license or follow the directions on how to settle at the bottom of the directive.” The bottom of the directive informed Respondent as follows: You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

On February 1, 2016, Investigator Pennington reissued the Directive with an amended deadline of February 9, 2016, that provided additional information about the possible consequences of failing to comply with the Directive. 8. On January 29, 2016, ALJ Douglas issued the decision in Case No. 2015A-1326-ROC, finding that Complainant had established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, by performing sloppy mortar work on the roof, failing to property attach roof tiles, and causing oil stains to the tile floor beneath the cedar beam and latilla patio ceiling. As a result, ALJ Douglas recommended that Respondent’s License No. CR42.272850-D be suspended for five days. 9. ALJ Douglas’s decision noted that “[d]uring 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.”[1] 10. On March 1, 2016, the Registrar substantially accepted ALJ Douglas’s decision in Case No. 2015A-1326-ROC. According to the Registrar’s public website, between April 11, 2016, and April 15, 2016, Respondent’s License No. CR42.272850-D was suspended. 11. On March 18, 2016, the Registrar issued a Citation in Case No. 2015- 4970, charging cause to suspend or revoke 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). 12. Respondent filed a timely written answer to the Citation in Case No. 2015-4970, alleging that it had repaired the new roof deficiencies and stating that the stains of the cedar beams in the patio ceiling were from “old . . . linseed oil [that] will scrape right off with your finger,” but that Complainant had refused all attempts at repair. 13. The Registrar referred Complainant’s second complaint in Case No. 2015-4970 to OAH for an evidentiary hearing. 14. On June 3, 2016, the Registrar issued License No. R-62.305503-R for minor home improvements to Respondent. The scope of that license is as follows: Remodeling, repairs, and improvements to existing structures or appurtenances not to exceed $5,000 for labor and materials per project per dwelling or appurtenance. The minor home improvement contractor shall not perform structural work to any existing structures or appurtenances, including load bearing masonry or concrete work (with the exception of on-grade flat work), and load bearing carpentry work (with the exception of patio or porch covers). . . .

A.A.C. R4-9-103(A). 15. An evidentiary hearing was held before the undersigned ALJ on July 7, 2016, and August 4, 2016, on Complainant’s second complaint against Respondent in OAH Case No. 2015A-4970-ROC (the Registrar’s Case No. 2015-4970). The hearing was contentious. 16. Complainant submitted sixteen exhibits and presented the testimony of three witnesses: (1) Himself; (2) James (“Jim”) Harrison (“Mr. Harrison”), who testified about the cost of the work that needed to be done to properly repair the patio ceiling; and (3) Eric Godoy (“Mr. Godoy”), who testified about the poor condition of the patio ceiling. Respondent submitted three exhibits and presented the testimony of three witnesses: (1) Mr. Worth; (2) Wylie Bateson (“Mr. Bateson”), who worked on the project; and (3) Levi Hetzel, who also worked on the project. Investigator Pennington also testified. Hearing Evidence 17. Investigator Pennington testified that License No. R-62.305503-R that the Registrar issued to Respondent on June 3, 2016, would have allowed it to perform the repairs to the patio ceiling. 18. Respondent had performed roofing work for Complainant five years before the complaint at issue. After a tree fell on Complainant’s roof, he called Respondent to perform repairs. 19. After Respondent completed the roof repairs, the parties discussed the patio ceiling. Mr. Worth testified that the cedar patio ceiling was dry and in poor condition and that Complainant stated that no maintenance had been performed on the cedar patio ceiling for seventeen years. Mr. Worth testified that the parties’ agreement regarding the cost of the application of oil to the patio ceiling was based on time and materials. 20. Complainant testified that Mr. Worth suggested oiling the patio ceiling when Respondent was performing the roof work. Complainant testified that although the ceiling looked “awfully good,” he agreed to have Respondent spray oil on it because he trusted Mr. Worth. 21. Mr. Hetzel testified that while Respondent was finishing the roof, Complainant borrowed Respondent’s pressure washer to clean the driveway and house. Mr. Hetzel testified that Complainant used the pressure washer to clean the cedar patio ceiling to prepare it for the application of oil. Mr. Worth testified that Mr. Hetzel had turned down the power setting on the pressure washer before he gave it to Complainant to wash the patio ceiling. 22. Complainant testified that Mr. Worth used a power washer to clean the ceiling on February 25, 2015, then informed him that he was applying Penofin with Chevron Shingle Oil, linseed oil, and turpentine to the ceiling.. Complainant testified that the manufacturer advised him that Penofin should not be blended with other products.[2] 23. Mr. Worth testified that Respondent applied a mixture of Chevron shingle oil, linseed oil, and turpentine to the patio ceiling. Respondent used a spray machine borrowed from Mr. Worth’s uncle in Colorado, which in the past had contained Penofin.[3] Mr. Worth testified that Respondent did not apply any stain to the cedar ceiling. 24. Complainant submitted the manufacturer’s specifications for the application of Chevron oil, which stated that “[a]lthough Chevron Shingle Oil retards the aging process, it will not renew wood that is already weather damaged.”[4] The specifications prescribed that the roof should be hosed with water 24 hours prior to application” or that “[a]lternatively, a licensed contractor can power wash the roof thereby removing weather-damaged wood, allowing oil to absorb into new wood.”[5] 25. Mr. Hetzel testified that Respondent applied oil the patio ceiling 2½ or 3 weeks after Complainant washed it. Mr. Worth testified that stains from prior treatments cannot be seen if the wood has not been treated from a long time unless the wood is wet. 26. Mr. Bateson testified that Respondent applied four coats of the oil mixture over two days to the cedar ceiling, being careful to wipe up the excess product and to allow the oil mixture to soak into the ceiling. Mr. Bateson testified that although the latillas were extremely dried out and in poor condition, he believed that they were still salvageable when Respondent applied the oil. 27. Mr. Bateson and Mr. Worth testified that at Investigator Pennington’s initial January 20, 2016 jobsite inspection, Mr. Worth was able to remove the dark stain on the beams with his finger. Mr. Worth testified that he believes that the dark stains were caused by linseed oil that was incorrectly applied too thick in the past. Mr. Worth explained that when oil is applied to wood, it will penetrate into the wood, bring oil that has been improperly applied in the past to the surface, and darken the oil. 28. Investigator Pennington testified that the February 9, 2016 Directive was Complainant’s requirement. Investigator Pennington performed a compliance inspection on March 10, 2016, and noted that although all new roofing issues had been corrected, the patio ceiling had not been corrected. 29. Mr. Worth testified that Tom Sykes of Tom’s Painting went out three times to look at the ceiling, most recently one week before the second hearing date in this matter, but that Complainant would not answer the door. Mr. Worth testified that Complainant was out of the country for two months, during which time Respondent could not repair the patio ceiling. 30. Investigator Pennington performed a prehearing jobsite inspection on July 6, 2016. He provided thirteen black-and-white photographs of his July 6, 2016 inspection.[6] 31. Investigator Pennington testified that the patio ceiling should have been cleaned before the oil was sprayed on. Investigator Pennington identified spots on the beams on the patio ceiling that he testified that resulted from substances not being cleaned off the beams before Respondent sprayed them with oil.[7] Investigator Pennington testified that oiling wood makes it darker and brings out variations in the wood. Investigator Pennington identified another photograph that showed where the dark spot had been rubbed off the beam.[8] 32. Investigator Pennington identified one photograph that showed some splintering in the latillas in the patio ceiling.[9] Investigator Pennington testified that cedar dries out and that he did not think that the splintering was caused by Respondent spraying oil on the ceiling. Investigator Pennington testified that the only workmanship deficiency that he saw were the splotches on the beams and that he did not see any damages to the rest of the ceiling for which Respondent was responsible. 33. Complainant submitted photographs that showed splintering of the latillas and beams.[10] Complainant testified that Respondent caused the damage when on February 25, 2015, Mr. Worth washed half the patio ceiling with a power washer. 34. Mr. Harrison testified that he specializes in stripping wood and preparing wood surfaces for staining. Mr. Harrison did not testify that he possesses a contractor’s license issued by the Registrar and the Administrative Law Judge was not able to locate a license for Mr. Harrison on the Registrar’s public website. 35. Mr. Harrison testified that the latillas on Complainant’s patio ceiling were too damaged and warped to be salvaged and that they would need to be replaced. Mr. Harrison testified that he believed that the damage was from power-washing. Mr. Harrison testified that it would cost $3,000.00 to $4,000.00 to prepare the patio ceiling for necessary repairs. 36. Mr. Godoy testified that he owns Arizona Energy Masters Corporation. (“Arizona Energy”). According to the Registrar’s public website, Arizona Energy holds License No. KB-1.256229-D for dual building contracting. The license is qualifying party exempt and Angelica Marissa Godoy, an officer, is the only person listed on the license. 37. Mr. Godoy testified that he met Complainant and his wife at their house in 2010, after a storm, and that the latilla ceiling looked good at that time. He did not observe any condition in the ceiling that required repair. Mr. Godoy acknowledged that he was not an expert in wood. 38. Mr. Godoy testified that the patio ceiling looked good after Respondent completed oiling. Currently, however, dark splotches have appeared on the beams and the latillas are cupping. 39. Respondent submitted an estimate from Jake’s Custom Framing, Inc., License Nos. ROC094944 and ROC133954, dated March 29, 2016, in the amount of $14,785.00 to perform the following scope of work: DEMO EXISTING ROOF SHEATHING & EXISTING GRAPE STEAKS[11] [sic], CLEANUP INTO DUMPSTER (TO BE PROVIDED BY YOU) SUPPLY & INSTALL NEW GRAPE STEAKS, PROVIDE & Install new Roof SHEATHING.[12]

40. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior record on the Registrar’s public website. On August 15, 2016, the date of this decision, Respondent’s license was administratively suspended for lack of bond. The only prior discipline against Respondent’s license resulted from Complainant’s first complaint. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[13] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[14] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[15] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[16] 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.”[17] 4. Complainant established cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A) (3),[18] namely A.A.C. R4-9- 108,[19] based on the splotches that it left on the cedar beams in Complainant’s patio ceiling. 5. Complainant did not establish that Respondent caused or is responsible for any defects or deficiencies in the cedar latillas in the patio ceiling. 6. Respondent did not pay a properly licensed contractor whom Complainant had hired to remove the dark splotches on the cedar beams of the patio ceiling on or before 5:00 p.m. on February 9, 2016, the deadline on the February 1, 2016 Directive. However, eventually Respondent obtained a new license to enable it to perform the minor repairs that the Directive required. There is no evidence that Complainant ever provided any properly licensed contractors’ names to Respondent before the hearing and, in any event, Complainant is seeking far more extensive repairs than the Directive required Respondent to perform. Under the circumstances, Complainant did not establish additional cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).[20] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. CR42.272850-D of Respondent T and S Roofing LLC shall be suspended for a period of one calendar day. 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, August 15, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ALJ Decision in Case No. 2015A-1326-ROC at Finding of Fact No. 4. [2] See Complainant’s Exhibit C-9. [3] Penofin is a penetrating oil and staining agent. See Complainant’s Exhibit C-8. [4] Complainant’s Exhibit C-7. [5] Id. [6] The photographs were admitted as Complainant’s Exhibit P1-P13. [7] See Complainant’s Exhibits P6, P9. [8] See Complainant’s Exhibit P12. [9] See Complainant’s Exhibit P7. [10] See Complainant’s Exhibits C-3 and C-4. [11] The parties also referred to the latillas as “grape stakes.” [12] Complainant’s Exhibit C-11 (footnote added). [13] See A.R.S. § 32-1154(A). [14] 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). [15] See A.A.C. R2-19-119(B)(2). [16] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [17] Black’s Law Dictionary at page 1220 (8th ed. 1999). [18] 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.” [19] 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.” [20] 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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