ALJDEC decisions subject to certification as final

2015A-952-ROC · Registrar of Contractors · 2016-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2016 APPEARANCES: Complainant Lawrence K. Johns appeared on his own behalf. Respondent Alpine Construction & Development LLC was represented by Joseph Holland. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Alpine Construction & Development LLC (Respondent) is the holder of License No. 143304 issued by the Arizona Registrar of Contractors (Registrar). On or about September 19, 2014, Complainant Lawrence K. Johns (Complainant) entered into a contract with Respondent to, among other things, install a metal roof on Complainant’s home. The contract between Complainant and Respondent called for 26 gauge metal roofing with a provision that “[i]n the event materials specified in the Plans are unavailable at the time required, to avoid delays in construction, . . . the Contractor reserves the right to substitute materials specified in the Plans with materials of equal or better quality.” On or about March 3, 2015, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Tom Sandoval, who has since retired from the Registrar. On or about April 9, 2015, after a jobsite inspection, Investigator Sandoval issued a written directive to Respondent that provided 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. The entire roof that is wavy and at the edge that is screwed down bending the roof metal. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent corrected the overly tightened screws along the edge of the roof that were bending the metal at that point. Respondent did not replace the entire roof to address the “wavy” appearance of the metal. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). A hearing was held on February 5, 2016. Investigator Steve Philpott testified that the metal roofing installed was not 26 gauge, but was 29 gauge. Investigator Philpott stated that the workmanship issue identified in the Directive was not related to the substitution of the 29 gauge metal roofing for the 16 gauge metal roofing called for in the contract because the substitution was not inappropriate. Rather, the Directive was centered on the wavy appearance of the roof and the overly tightened screws at the edges of the roof. Investigator Philpott testified that the overly tightened screws at the edges of the roof had been corrected at the time of the prehearing inspection, but that the roof was still wavy in appearance. Leota Johns, wife of Complainant, testified that her neighbors have 26 gauge metal roofing without any screws showing and their roofs do not show any of the waviness visible on her roof. Ms. Johns asserted that she was not informed that the color she selected was not available in the 26 gauge roofing and was only available in 29 gauge roofing. Ms. Johns also stated that if she had been told the color was not available, she would have picked a different color instead of accepting a higher gauge of metal roofing. Ms. Johns testified that a new board of directors for the neighborhood was forming and Herb Miller, a fellow homeowner with no authority at this time, had told her the roof would have to be replaced. Carl Nix, an employee of Respondent, testified that he spoke to Complainant and Ms. Johns at the roofing supply store regarding the color selection and that they were adamant about the color they had selected. When Complainant and Ms. Johns expressed concern over the delay in getting the roof installed, Mr. Nix indicated he told them that the color was not available in 26 gauge and they approved a change in gauge in favor of keeping the color they selected. Mr. Nix testified that “oil canning,” the wavy appearance of the metal roofing, was a feature of all metal roofing and that there is no correction for oil canning. Mr. Nix stated that the screws at the edges of the roof had been corrected. Dan Sherwood, Respondent’s Qualifying Party, testified that Complainant did not specify a roof style with no exposed screws. Mr. Sherwood also stated that Investigator Sandoval was not familiar with metal roofing and oil canning at the time he issued the Directive, but that when he received a similar complaint in a different matter, he spent a substantial amount of time at a metal roofing supply to “get up to speed on oil canning.” Mr. Sherwood asserted that Respondent had relieved the pressure off the screws to eliminate the bend at the end of the roof. Respondent presented the testimony of James Cherry, an individual with 21 years of experience fabricating and installing metal roofs. Mr. Cherry stated that oil canning was not a defect and would never constitute a reason for rejecting the installation of a metal roof. Mr. Cherry also indicated that the specification for installation of metal panels differ and that some installations require screws at the end of the panels. Mr. Cherry testified that 26 gauge metal roofing constitutes a range of widths and is not just one set width. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 25, 2016. Such prior License record reflects that Respondent’s License No. 143304 was first issued on March 6, 1999, and was current. The Registrar’s public website does not indicate any previous discipline or any additional open cases. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. The credible evidence presented at hearing established that oil canning is not a defect and is not a workmanship issue. Therefore, the allegations of poor workmanship with regard to the wavy appearance of the metal roof is not supported by the evidence. There was evidence that the screws on the edges of the roof were overly tightened when first installed, but that the issue was corrected after the Directive was issued. Therefore, Complainant failed to establish that Respondent did not complete perform the work 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. As previously noted, Respondent corrected the overly tightened screws. While Respondent did not make any attempt to comply with the Directive as to the waviness of the roof, the failure to do so was justified by the conclusion of law above. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32- 1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Lawrence K. Johns. 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, February 25, 2016.

/s/ Tammy L. Eigenheer 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.”

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